united-states lawyer
Demanding lawyer fee discount after weak representation
<p>Is there a practice or custom of demanding reduced legal fees for poor performance?</p>

<p>Background example: Our company was sued for alleged patent infringement. We provided a detailed explanation to our lawyers and plaintiff for why the patent in question was extremely narrow and the infringement allegations were baseless. The plaintiff persisted, and our lawyers constantly tried to persuade us to settle with the plaintiff (under terms that were not favorable to us).  After a year of litigation the lawsuit ended with an in-person meeting with plaintiffs and one of our lawyers.  We had other agents present who helped explain that if the plaintiffs were to lose in court they would lose their claimed patent rights, whereas if we were to lose we would lose an insignificant amount of our income.  The lawsuit was concluded by a dismissal without prejudice.</p>

<p>We feel that our lawyer did not vigorously and competently represent our interests and claims, and also that as a result of their incompetence and inattention the dispute was far more protracted than necessary.</p>

<p>Is there a common basis for demanding a discount in the lawyer's bills for these complaints?</p>

<p>In general you can dispute and negotiate any bill from a professional.  The stronger your arguments for disputing it, and the more coherent your demands for adjustment, the more successful you will tend to be.  This is like any business negotiation.</p>

<p>One partner at a very large U.S. law firm once admitted to me that their corporate clients almost always ask for &ndash; and receive &ndash; billing adjustments.</p>

<p>Of course, when push comes to shove, unless you're accusing the lawyer of fraudulent billing, then typically by contract you are liable for the bills.</p>

<p>However, non-lawyers often assume that they will lose any dispute with their lawyers because it seems like lawyers have free access to the legal system.  The reality is that there is a significant threshold that must be met before a law firm will <em>sue</em> a client for payment.  That threshold will depend on the firm's opportunity costs, the costs of litigation, their assessment of reputational risks, how much they expect to actually collect, and sometimes just how ticked off they are.</p>

<p>Take it as a given that you can always ask, even ask forcefully, for a discount. If the supplier agrees to a discount then the contract has been modified.</p>

<p>You need to consider:</p>

<ol>
<li>What you asked your lawyer to do</li>
<li>What fee you agreed to pay for that work</li>
<li>Did they perform the work that was asked of them and charge the fee that was agreed?</li>
</ol>

<p>If the answer to the last question is yes then you are legally obliged to pay.</p>

<p>From your description, it is not clear that the lawyer in question ever offered poor advice. They may have had extremely good reasons for suggesting that you settle early; for a start that reduced everyone's costs and avoids the vagaries of a judge's decision - the law may be fair and impartial but judges are people; you don't want to go in front of a judge who's just had a fight with their spouse.</p>

<p>As for "not vigorously and competently representing" you; there is nothing in what you have said that supports this. Suggesting that you settle to you in private does not say anything about how vigorously they put your case to the other side; I have no doubt that their lawyers were suggesting that they settle too.</p>

<p>A year of litigation over a trade mark is an <strong>extremely</strong> rapid case (certainly in Australia it would be). The wheels of justice roll impartially, majestically and <em>slowly</em>! Settling on the steps of the courthouse is <em>extremely</em> common and some litigants actually have that as their plan all along - they hope that you will blink first.</p>

<p>Think of it as a learning experience; look at what it cost you with your lawyers fees and your experts and your own time and the next time you get sued make a without prejudice offer of about 50% of that.</p>

<p>Justice is an expensive luxury - just get on with Business.</p>
