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Recent surveys of corporate counsel demonstrate that they are looking for three important things from their outside advisors.  When law firms don’t respond to these demands, they may lose out on litigation opportunities.

First, clients want certainty.  At a recent general counsel forum in Calgary, attendees expressed frustration that “litigation budgets are spiraling out of control, and no-one is listening”.  It is not just the cost, but also the uncertainty of a litigation budget, that makes corporate counsel reluctant to pursue claims.  

Second, clients want creativity.  A much-cited report at the end of 2015 highlighted that while general counsel raise the idea of Alternative Fee Arrangements (AFAs) 68.2% of the time, law firms suggest AFAs only 1.3% of the time.  To be keep their clients’ business, law firms need to take the lead on proposing creative fee structures.

Third, and perhaps most interestingly, clients want to preserve their good relationships with outside counsel.  As a result, instead of engaging in hard negotiations on rates, corporate counsel are simply “voting with their feet” by choosing not to pursue litigation or taking it elsewhere, often without ever discussing it with their preferred law firm.

Litigation funding is one tool to help law firms respond to these demands.  By partnering with a funder, a client can take all or part of the cost of litigation off their balance sheet, thereby achieving certainty.  When a law firm advises a client about the availability of funding, it demonstrates creativity and proactivity.  Most importantly, funding enables corporate counsel to continue working with their preferred litigators, so they can advance meritorious claims together.