I frequently encounter situations in which there is likely civil liability between two parties but where the aggrieved party does not pursue legal action because they lack money and/or expertise.
Occasionally I have approached lawyers when I see such cases with apparently positive (risk-adjusted) expected return from at least threatening, if not actually carrying out, litigation. And I usually get one of two answers:
- We're too busy to do something like that on contingency right now.
- We don't think the odds of prevailing and collecting merit the cost of pursuing that on contingency.
I'm not a lawyer, but I follow the industry well enough to know that there are a lot of lawyers lacking for work. If you're an unemployed lawyer, or a solo practitioner without a full caseload, then isn't any non-frivolous case with a positive potential payout worth pursuing? And if you're a firm with the sunk cost of offices, staff, subscriptions, etc., wouldn't you always want those assets working at 100% capacity?
Therefore, why doesn't every practice want a queue of potentially profitable contingency cases that they can chip away at when they don't have a 100% paid workload? I can understand that if one took a contingency case into litigation, and then paid work came along, one wouldn't want the contingency case distracting from the paid work. But can't one accept a case on contingency and "as time permits," so that in such an event one would simply drop the contingency case (or, if it looked promising, hand it off to some other lawyer in a slump)?
Are there practical or professional reasons this is not standard practice?
From an economic perspective this seems odd: As a client if I don't have the means to pursue a legitimate claim, then (on principle) I might be willing to give up to 100% of any winnings to a lawyer who does pursue it. As a lawyer, if I have a positive expected return to a contingency case, I'd like to have the option of picking that up when I can't find other work (to within some error term – perhaps the alternative of running a coffee shop out of my office, or taking a minimum-wage writing job.)