By Jeffrey T. Donner, Esq.

There is a particular kind of prospective commercial litigation client that experienced lawyers learn to recognize. He is often intelligent. He may be successful. He may have made money in business, real estate, lending, securities, construction, finance, or some other field that required risk tolerance and judgment. He may have no difficulty putting substantial money into a speculative investment, loaning money to a friend, buying a vehicle, funding a business deal, or taking a financial risk when he believes the upside justifies it.

But when that same person needs a lawyer, he sometimes stops thinking like a businessperson. He starts thinking like he is offering the lawyer an opportunity.

The language varies, but the concept is usually the same. “Will you take my case?” “I am willing to give you the case.” “You can have skin in the game.” “You will get paid when we recover.” “This could be a big case.” “You should be interested in this.” The client presents the lawsuit almost as if it were an asset he is allowing the lawyer to share.

That framing is usually wrong.

A speculative commercial lawsuit is not a gift to the lawyer. It is not a favor. It is not a business opportunity in the ordinary sense. In many cases, it is a request for the lawyer to finance the client’s lawsuit with the lawyer’s time, labor, judgment, reputation, and professional responsibility.

That distinction matters. It matters because lawyers are professionals, not litigation banks. It matters because commercial litigation is labor-intensive, uncertain, adversarial, and often expensive to prosecute properly. And it matters because the lawyer is not merely “taking a chance” in the abstract. The lawyer is being asked to assume real burdens while the client often assumes comparatively little beyond cooperation and patience.

Commercial Litigation Is Not the Personal Injury Model

One major source of confusion is the personal injury advertising model. People see billboards, television commercials, radio advertisements, internet ads, and social media marketing that say things like “No fee unless we win” or “Free consultation.” Over time, those messages have shaped how many people think all lawyers work.

That public perception is inaccurate.

The personal injury contingency model exists because certain cases have features that make contingency representation economically rational. Many personal injury cases involve insurance. There may be a claims-adjustment system. There may be a carrier with money available to pay a settlement or judgment. Liability may be relatively clear, or at least capable of being evaluated through a familiar framework. Damages may be supported by medical bills, wage loss, permanent injury evidence, or other categories of proof that fit within a known claims process.

Even then, personal injury lawyers do not accept every case. Quite the opposite. High-volume personal injury firms usually reject a large percentage of potential cases. The public sees the advertising, but the public does not see the screening system behind it. Most callers are not immediately placed on the phone with an experienced trial lawyer for an hour of free legal analysis. There is usually an intake process. Non-lawyer staff gather information. The firm filters. Weak cases, unclear cases, small cases, difficult causation cases, and cases with inadequate insurance are often declined before a lawyer ever invests substantial time.

That is not a criticism of the personal injury model. It is simply how the model works.

Commercial litigation is different. A commercial dispute often has no insurance. The defendant may be insolvent. The defendant may have already moved money. The defendant may file bankruptcy. Liability may be hotly contested. Damages may require expert analysis. Collection may be uncertain. The case may involve contracts, fraud, fiduciary duties, securities issues, UCC filings, personal guaranties, corporate structure, alter ego theories, fraudulent transfers, bankruptcy stays, dischargeability questions, and judgment-enforcement problems.

In that environment, winning the lawsuit may only be the first phase. Collecting money may be a second lawsuit in practical terms. Bankruptcy may become a third battlefield. The lawyer may spend years litigating, negotiating, monitoring, enforcing, and protecting the client’s position without any guarantee that a collectible recovery will ever exist.

That is not the billboard model.

The “Free Consultation” Myth

The phrase “free consultation” has also distorted expectations. Many people now believe that a lawyer should spend meaningful professional time analyzing their legal problem for free because they have seen that phrase used in advertising. But the phrase does not mean what many people think it means.

In many practices, a “free consultation” is not a deep legal analysis. It is an intake screen. It is a threshold conversation designed to determine whether the case fits the firm’s business model. It is often handled first by non-lawyer personnel. The purpose is not to give a complete legal opinion. The purpose is to determine whether the firm wants to investigate further.

That is fundamentally different from a serious commercial litigation consultation.

A real commercial litigation consultation is not just “jumping on a call.” It often requires the lawyer to review contracts, emails, text messages, court filings, corporate documents, payment records, settlement agreements, security agreements, bankruptcy dockets, correspondence, pleadings, motions, discovery, and prior court orders. The lawyer has to understand not only what happened, but what can be proved. The lawyer has to evaluate not only whether the client is angry, but whether the client has a legally viable claim, a provable damages model, and a realistic path to recovery.

That kind of analysis is professional work.

It is closer to a medical diagnostic process than a sales call. A patient who needs a specialist does not expect the doctor to review records, evaluate imaging, discuss treatment options, and prepare a plan for free simply because the patient may or may not decide to proceed. If imaging is needed, the patient pays for the MRI. If the specialist reviews the MRI and discusses treatment options, the specialist is paid for that time. The patient may not like the diagnosis. The patient may not choose surgery. But the diagnostic work still had value.

Legal analysis is similar. The documents are often the lawyer’s MRI. The consultation is the specialist visit. The strategy discussion is the treatment plan. If the client wants meaningful legal analysis, the lawyer has to do real work before giving responsible advice.

A lawyer who charges for that work is not being unreasonable. He is being honest.

A Lawyer Is Not a Bank

When a prospective commercial litigation client asks a lawyer to take a case on contingency, the client is often asking the lawyer to function as a bank. The client may not describe it that way, but that is what is happening economically.

The lawyer is being asked to extend professional credit. Instead of lending money, the lawyer is lending time. Instead of advancing cash, the lawyer is advancing professional labor. Instead of charging monthly invoices, the lawyer is asked to wait until the end of the case and accept the risk that there may be no recovery at all.

That is a significant request.

A lawyer’s time is not an abstraction. If a lawyer spends 100 hours on one matter, those are 100 hours that cannot be spent on another matter. Those are hours that cannot be spent serving funded clients, building the practice, preparing for other hearings, writing, marketing, exercising, resting, or spending time with family. The lawyer is not merely “taking a shot.” The lawyer is allocating a finite professional life.

This is why opportunity cost matters. A speculative case does not merely risk nonpayment. It consumes the same hours that could have been used for paying work or for life outside work. A lawyer who has practiced for decades understands that time is the inventory. Once it is spent, it cannot be recovered.

A client who asks a lawyer to finance a case with time should understand what he is asking. He is not just asking for confidence in the case. He is asking the lawyer to put the lawyer’s own professional resources behind someone else’s dispute, often with no guarantee of compensation and no guarantee of collection.

Sometimes that can make sense. In the right case, with the right client, against the right defendant, under the right agreement, a lawyer may decide to share risk. But that is the exception in commercial litigation, not the default.

“Skin in the Game” Sounds Fair Until You Examine It

The phrase “skin in the game” is popular because it sounds balanced. It suggests that lawyer and client will both be invested. It suggests shared incentives. It suggests partnership.

But in many commercial litigation cases, the phrase hides an extreme imbalance.

The lawyer may be asked to review the record, develop strategy, draft pleadings, file motions, attend hearings, respond to motions, prepare discovery, review document productions, take depositions, defend depositions, prepare for mediation, negotiate settlement, prepare for trial, try the case, handle post-judgment motions, and pursue collection. If bankruptcy is involved, the lawyer may also need to monitor the bankruptcy docket, analyze the automatic stay, evaluate plan treatment, object when appropriate, protect creditor rights, consider dischargeability issues, and coordinate the state-court strategy with the federal bankruptcy process.

That can easily become 50, 100, 150, or 200 hours of work. Sometimes much more.

The client’s obligations, while real, are different. The client must provide documents, answer questions, tell the truth, cooperate in discovery, attend deposition, attend mediation, and possibly attend trial. A good client matters. A bad client can ruin a case. But the day-to-day professional labor of moving the lawsuit forward is overwhelmingly the lawyer’s burden.

So when the client says he wants the lawyer to have “skin in the game,” the practical meaning is often this: the lawyer should do the work, carry the deadlines, manage the risk, fund the case with unpaid time, and maybe get paid someday if the case succeeds and money is actually collected.

That is not equal risk.

The client already has the claim. The client already has the dispute. The client already has the problem. The lawyer is being asked to step into that problem, take responsibility for it, and finance the effort to solve it.

That is not a 50/50 partnership. In many cases, it is closer to the lawyer carrying nearly all of the practical burden.

The Lawyer Is Risking More Than Fees

Some clients think the lawyer is only risking a fee. That misunderstands the profession.

The lawyer is also assuming professional responsibility. Once the lawyer appears in a case, the lawyer owns deadlines. The lawyer owns filings. The lawyer owns strategy. The lawyer owns communications. The lawyer becomes the person the court, opposing counsel, and the client expect to act. If something goes wrong, the lawyer is the one whose name is on the pleading, whose reputation is involved, and whose professional judgment may later be questioned.

The lawyer also assumes reputational risk. Litigation clients can become unhappy even when the lawyer does good work. They may become frustrated by the cost, the delay, the court, the opposing party, the judge, the facts, the law, or the outcome. Some clients later forget what they were told about risk. Some remember only that they expected victory. Some threaten fee disputes, malpractice claims, or bar complaints. Those risks exist in every litigation practice, even when the lawyer acts competently and ethically.

The lawyer also assumes emotional and operational risk. Litigation is not a clean academic exercise. It involves urgent emails, hostile opposing counsel, unreasonable clients, unpredictable judges, imperfect facts, and constant deadlines. A lawyer who takes on a difficult commercial matter is not merely reading documents in a quiet office. He is assuming responsibility for a conflict.

That responsibility has value. It cannot be treated as free.

A $15,000 Retainer Is Often Modest in Serious Commercial Litigation

Many clients hear “$15,000 retainer” and react as if the lawyer has demanded an extraordinary sum. In many serious commercial cases, $15,000 is not extraordinary. It is modest.

At $500 per hour, $15,000 represents 30 hours of attorney time. At $550 per hour, it represents a little over 27 hours. A serious commercial case can consume that quickly. A lawyer can spend several hours just reviewing the existing record and understanding the posture. A meaningful strategy memo can take hours. A motion can take many hours. Preparing for and attending a hearing can consume a large part of that amount. Discovery, bankruptcy review, settlement analysis, and client communications can easily exceed it.

If the case requires 100 hours, a $15,000 payment does not come close to compensating the lawyer at ordinary hourly rates. If the case requires 150 hours, the gap becomes even larger. If the matter stretches over years, the retainer may represent only a small fraction of the time actually invested.

This is why hybrid arrangements exist. A lawyer may agree to accept less money up front if there is a meaningful success fee on the back end. The up-front fee gives the lawyer some immediate compensation for availability, commitment, and early work. The success fee compensates the lawyer for taking the risk that the matter may require substantial time and may produce no recovery.

But that only works if the economics are clear. If the client later tries to reduce the success fee, redefine the recovery, change gross recovery to net recovery, or create termination provisions that allow the client to avoid the success fee after the lawyer has created value, the arrangement no longer makes sense.

The client is then asking the lawyer to accept limited guaranteed compensation, unlimited work risk, and uncertain back-end compensation controlled by future arguments.

That is not a fair hybrid.

That is a bad deal.

Gross Recovery Versus Net Recovery Is Not a Technicality

In contingency and hybrid-fee arrangements, the difference between gross recovery and net recovery is not a minor drafting issue. It is central to the economics of the engagement.

A gross-recovery fee is clear. If money is recovered, the percentage is calculated on the total recovery before deductions. That avoids later disputes over what should or should not be subtracted. It gives both sides certainty. The client knows the percentage. The lawyer knows the economic bargain.

A net-recovery fee invites future disagreement. What counts as a cost? What offsets are deducted? What if the defendant pays through a settlement, a payment plan, a bankruptcy plan, a sale of collateral, a related entity, or a later collection effort? What if the client claims that some portion of the recovery was not caused by the lawyer’s work? What if the client terminates the lawyer shortly before recovery and later argues that the lawyer’s contribution was limited?

Those are not imaginary problems. They are predictable problems.

In a commercial case, where recovery may come in stages or through complicated mechanisms, “net recovery” can become a fertile ground for disagreement. The lawyer who took the risk may then have to fight over the fee after fighting over the case.

No experienced lawyer wants to litigate against his own client after litigating for his client.

That is why clear fee provisions matter. They are not mere lawyer language. They are risk-allocation provisions.

Termination Provisions Matter Too

Clients sometimes object to fee provisions that protect the lawyer if the client terminates the lawyer after substantial work has been performed. They may view those provisions as unfair or overly protective.

But the lawyer’s concern is legitimate.

In a contingent or hybrid case, the danger is obvious. The lawyer may invest substantial time, develop the strategy, create settlement leverage, prepare the case, and bring the matter close to recovery. Then, if the client can terminate the lawyer and avoid the success fee, the lawyer has financed the case and created value without receiving the benefit of the bargain.

That is not acceptable.

The client always has important rights in the attorney-client relationship. A client is not trapped with a lawyer forever. But a lawyer who accepts risk in exchange for a success component is entitled to protect the economic bargain to the extent permitted by law.

That is especially true in commercial litigation, where the client may be sophisticated, the case may involve significant money, and the recovery may come after months or years of work.

If a client aggressively attacks those provisions before the representation even begins, that tells the lawyer something important. It suggests that the fee may become a dispute later. It suggests that the client is already thinking about how to reduce or avoid the lawyer’s compensation. It suggests that the relationship may begin with mistrust.

That is not a promising foundation.

Bankruptcy Changes the Entire Analysis

When one of the opposing parties has already filed bankruptcy, or when bankruptcy is likely, the analysis becomes even more straightforward.

Bankruptcy is not a side issue. It is not a minor complication. It can become the central forum in which the creditor’s rights are protected or lost. The automatic stay may affect what can happen in state court. The debtor’s plan may affect payment. The creditor may need to file or monitor a proof of claim. There may be deadlines. There may be objections. There may be dischargeability issues. There may be questions about whether a claim survives, whether collateral exists, whether a debt is secured, whether fraud matters, and whether collection can continue.

That is federal court work. It requires attention. It requires knowledge. It requires time.

Representing a creditor in bankruptcy is not normally something a lawyer does on pure speculation. The work may be defensive, procedural, protective, and uncertain. The lawyer may need to act to preserve rights without any immediate path to payment. The lawyer may spend time ensuring the client is not prejudiced, even if there is never a meaningful distribution.

That is not the kind of work that should be casually folded into a speculative contingency arrangement without serious funding.

If a debtor has already filed bankruptcy, the case has become more complicated and less certain. That means the lawyer should be more careful about taking the case, not less careful. It means the client should expect to fund the work, not expect the lawyer to discount it further.

A bankruptcy component is not a reason for the lawyer to take more risk. It is a reason for the client to understand that the matter has become more serious.

Legal Representation Is a Major Financial Event

Hiring a lawyer for serious litigation should be understood as a major financial event. People understand this in other areas of life.

A person who needs surgery expects it to cost money. A person who needs a specialist expects to pay for the appointment. A person who needs an MRI expects to pay the imaging facility. A person who needs a roof replaced expects to pay the roofer. A person who needs major home repairs, vehicle repairs, business equipment, accounting work, tax advice, or engineering work expects professional services to cost money.

Legal representation in a serious dispute is no different.

In fact, the stakes may be higher. A lawsuit may determine whether a client recovers money, loses money, preserves rights, avoids a judgment, protects a business, enforces a contract, survives a bankruptcy issue, or obtains leverage in a dispute that affects years of financial life.

And yet legal fees are often treated differently. Some clients who would never expect a surgeon, roofer, accountant, engineer, or mechanic to work for free somehow expect a lawyer to spend hours evaluating and pursuing a complex matter without being paid up front.

That expectation is not rational. It is cultural. It comes from years of advertising and from a misunderstanding of what lawyers do.

A serious legal matter should be budgeted like any other serious life or business event. It may not be pleasant. It may not be expected. It may not feel fair. But neither does surgery, roof replacement, flood repair, tax defense, or emergency business expense. Serious problems cost money to address.

The Client’s Belief in the Case Is Not Proof

Commercial clients often believe strongly in their cases. That belief is understandable. People rarely seek litigation counsel because they are indifferent. They come because they feel wronged, cheated, betrayed, defrauded, underpaid, or harmed.

But conviction is not proof.

The lawyer has to prove the case with admissible evidence. The lawyer has to fit the facts into legal claims. The lawyer has to overcome defenses. The lawyer has to satisfy burdens of proof. The lawyer has to persuade a judge, arbitrator, jury, bankruptcy trustee, opposing counsel, mediator, or some combination of those actors.

The client may view the dispute as obvious because he lived it. But courts do not decide cases based on the client’s emotional certainty. Courts decide cases based on law, evidence, procedure, credibility, and proof.

This matters because many speculative-fee requests assume that the case is a sure thing. The client thinks, “The lawyer will get paid because we are going to win.” But the lawyer knows there are several separate questions.

Can we prove liability?

Can we prove damages?

Can we defeat defenses?

Can we survive dispositive motions?

Can we obtain a judgment?

Can we collect the judgment?

Can we survive bankruptcy complications?

Can we do all of that economically?

A client may focus only on the first question. A lawyer must think about all of them.

Collectability Is Often the Case

Many clients focus on whether they are right. Lawyers also have to focus on whether there will be money at the end.

A claim against an insolvent defendant may be morally satisfying but economically useless. A judgment against a judgment-proof defendant may be a piece of paper. A fraud claim against someone who has no collectible assets may consume enormous time and produce little recovery. A claim against a debtor in bankruptcy may be delayed, reduced, discharged, or treated in a plan in a way that changes the entire economic picture.

Collectability is not a footnote. In commercial litigation, it may be the case.

This is one of the biggest differences between many personal injury cases and many commercial disputes. In an insured personal injury case, the insurance policy often defines the realistic recovery range. In a commercial case, there may be no comparable source of payment. The lawyer may have to chase assets, analyze fraudulent transfers, examine related entities, pursue guarantors, monitor bankruptcy, or negotiate around insolvency.

That work is difficult. It is not free. And it is not always successful.

A client who wants a lawyer to handle a difficult collection case on contingency is asking the lawyer to accept the risk that the defendant’s insolvency will defeat the entire economic purpose of the case.

That may sometimes be worth doing. But no client should assume it.

The Sophisticated Client Problem

The most frustrating cases are not always the cases involving unsophisticated clients. Sometimes the most frustrating prospective clients are sophisticated people who understand business risk perfectly well when they are the ones making the investment, but pretend not to understand it when the lawyer asks to be paid.

They may have money for speculative investments. They may have money for private loans. They may have money for business ventures. They may have money for personal expenses. But when it comes time to fund legal work to protect their own interests, they suddenly become allergic to retainers.

That inconsistency tells the lawyer something.

It tells the lawyer the client may not value legal work as real work. It tells the lawyer the client may believe the lawyer should be grateful for the chance to participate. It tells the lawyer the client may later challenge invoices, question strategy, resist replenishing trust funds, or complain if the case does not move as quickly as imagined.

The issue is not bitterness. It is pattern recognition.

Lawyers who have been practicing long enough know that fee resistance at the beginning often predicts trouble later. A client who fights the retainer may fight every invoice. A client who rewrites the fee structure may later challenge the fee. A client who treats the case as a favor may not respect boundaries. A client who expects urgency without funding may expect miracles without responsibility.

The beginning of the relationship is often the preview.

Good Clients Understand Mutual Commitment

Good clients do not have to be happy about legal fees. No one enjoys paying legal fees. A client can be careful, cost-conscious, and practical. A client can ask questions. A client can request budgets. A client can want clarity. Those are legitimate concerns.

But good clients understand that serious legal work requires mutual commitment.

They understand that if they want the lawyer to move quickly, the matter must be funded. They understand that if the case is complex, the lawyer needs time to review documents and evaluate the posture. They understand that if bankruptcy is involved, the matter has become more complicated. They understand that if the lawyer is being asked to share risk, the lawyer must also share upside.

Most importantly, good clients understand that the lawyer is not merely a vendor performing clerical tasks. The lawyer is assuming responsibility for a legal problem that may affect the client’s money, business, reputation, or future.

That relationship works best when both sides respect the economics from the beginning.

A funded engagement does not guarantee success. No lawyer can guarantee success. But a funded engagement allows the lawyer to work properly. It allows the lawyer to prioritize the matter, review the materials, develop the strategy, communicate with the client, and act with focus. It prevents the case from beginning with resentment or mistrust.

That matters.

The Wrong Clients Reveal Themselves Early

The wrong clients also reveal themselves early.

They want immediate attention but resist paying for it. They ask for urgent action but delay signing the agreement. They say they are ready to move forward but then redline the core economic provisions. They claim to want alignment but try to reduce the lawyer’s upside. They say the case is obvious but cannot explain collectability. They say other lawyers will take the case but do not actually have another lawyer willing to do so. They view the retainer as the lawyer’s obstacle rather than the client’s commitment to his own case.

These are not small warning signs. They are the relationship speaking before the relationship begins.

A lawyer who declines that engagement is not turning away a good case. He is avoiding a bad relationship.

That is especially important for small firms and solo practitioners. A large firm may be able to absorb a difficult client across a large platform. A solo or small-firm lawyer must be more selective. One bad client can consume enormous time, create stress, interfere with other clients, and damage the economics of the practice.

Selectivity is not arrogance. It is survival.

The Lawyer’s Time Has Value Even When the Answer Is No

Another misconception is that legal advice only has value if the lawyer ultimately takes the case. That is false.

Sometimes the most valuable legal advice is that the case should not be pursued. Sometimes the answer is that the economics do not make sense. Sometimes the answer is that bankruptcy has changed the leverage. Sometimes the answer is that the client may be right morally but unable to prove the claim legally. Sometimes the answer is that the defendant has no collectible assets. Sometimes the answer is that the client should settle, walk away, file a claim, monitor bankruptcy, or spend no more good money after bad.

Those answers require judgment. They require experience. They require the lawyer to tell the client something the client may not want to hear.

That is valuable.

A lawyer does not become less entitled to be paid because the advice is cautious. A doctor is paid even if the doctor says surgery is not recommended. An engineer is paid even if the engineer says the structure cannot be repaired economically. An accountant is paid even if the tax answer is unfavorable. A lawyer’s judgment has value even when the answer is not “yes, I will take your case.”

In fact, that is often when the judgment is most valuable.

Why I Charge for Serious Case Reviews

A serious case review is not a marketing call. It is professional work.

If a potential client wants a meaningful evaluation of a commercial dispute, the lawyer must review documents, understand the procedural posture, identify claims and defenses, consider deadlines, evaluate damages, assess collectability, and determine whether the matter makes economic sense. That is not a ten-minute conversation. It is not something that should be improvised while driving between hearings. It is not something that can be done responsibly based only on the client’s summary.

A paid consultation or paid case review creates the right incentives. It tells the client that the lawyer’s time has value. It gives the lawyer permission to do real work instead of superficial intake. It allows the lawyer to be candid rather than sales-oriented. It also helps filter people who want free reassurance from people who are serious about legal representation.

That does not mean every matter requires an enormous up-front payment just to talk. Different matters require different approaches. But in serious commercial disputes, especially those involving court filings, bankruptcy, disputed liability, or collection issues, a meaningful review should be paid.

That is not a barrier to representation. It is the first step toward responsible representation.

The Real Question Is Whether the Client Believes in His Own Case

When a prospective client asks a lawyer to take all or most of the economic risk, the lawyer is entitled to ask a simple question: if the client believes so strongly in the case, why is the client unwilling to fund it?

That question is not rhetorical. It goes to the heart of the engagement.

If the client is unwilling to invest in his own case, why should the lawyer invest hundreds of hours? If the client is unwilling to put money behind his own rights, why should the lawyer finance the effort? If the client has the ability to pay but chooses not to, what does that say about how the client values the matter?

There may be legitimate answers. Some clients truly lack resources. Some cases have public importance. Some claims are so strong and collectible that contingency makes sense. Some hybrid arrangements are fair and commercially reasonable.

But where a sophisticated client has resources and simply prefers that the lawyer carry the risk, the lawyer should be cautious.

The client’s desire to conserve cash is understandable. It is not, by itself, a reason for the lawyer to become the client’s litigation lender.

The Bottom Line

Commercial litigation is real work. Bankruptcy creditor representation is real work. Judgment enforcement is real work. Legal analysis is real work. Strategy is real work. Professional responsibility is real risk.

A speculative commercial case is not a gift to the lawyer.

A lawyer who requires a retainer is not being unreasonable. A lawyer who charges for a serious consultation is not being difficult. A lawyer who refuses to finance a risky commercial dispute is not lacking confidence. He is recognizing reality.

The right client understands that. The right client may ask questions, may want clarity, and may care about cost. But the right client also understands that if the matter is serious, it must be funded seriously.

The wrong client thinks the lawyer should be grateful for the opportunity to work for free now and maybe get paid later.

Those are very different starting points.

And after enough years in litigation, a lawyer learns to tell the difference.