New Jersey Association of Justice
American Bar Association
National Employers Lawyers Association

Will a Lawyer Take My Employment Case on a Contingency?

Will a Lawyer Take My Employment Case on a Contingency?Most plaintiff employment lawyers will take cases on a contingency basis. Whether a plaintiff employment lawyers will take an employment case on a contingency basis depends on the strengths and weaknesses of the case and ultimately the chances they believe they can prove the case in a court of law. Employment lawsuits are complex, time-consuming and unpredictable. For a plaintiff employment attorney to agree to take a case on a contingency, they will have to have a strong level of confidence in their ability to succeed in obtaining a recovery.

Most employment lawyers will offer and agree to take a case on an hourly basis so long as the client can pay the attorneys’ hourly rates. However, employment cases are extremely costly and most people cannot afford to pay an employment attorney their hourly rate for the entire course of the lawsuit. Therefore, it is often preferable for an individual to retain an employment attorney on a contingency if able to secure one who is willing to do so.

Hourly fee arrangements are generally straightforward. With hourly fee arrangements, an employment lawyer is paid his or her hourly rate multiplied by the actual time expended by the attorney in litigating the case. It is typically calculated in 6-minute increments. The hourly rates of the attorneys and support staff working on your matter should be spelled out in an executed retainer agreement with the client. Often hourly fee arrangements require an initial retainer fee to be paid by the client to the law firm against which the firm will bill for its time.

Under contingency fee agreements, the law firm will only be paid for their legal services if the client is successful in receiving an award, judgment or settlement. If the client and law firm are unsuccessful, the client is not responsible for paying the law firm for their legal services under a contingency fee arrangement.

Many employment lawyers are willing to take cases on a contingency fee basis because the legal claim(s) being pursued provide that the Court can make an award of attorneys’ fees to the plaintiff’s counsel in the event he or she is a prevailing party. These are referred to as fee-shifting statutes. Fee-shifting statutes make employers responsible for paying the attorneys’ fees of the plaintiff’s employment lawyer when the employee prevails on his or her claims in the employment lawsuit. While most laws do not have fee-shifting components, such as in personal injury, many federal and state employment laws provide for fee-shifting, including the Law Against Discrimination, Family and Medical Leave Act, New Jersey Family Leave Act, New Jersey Equal Pay Act and Wage Payment laws. Fee-shifting statutes help protect employees by allowing equal access to the courts by providing the financial incentive of a fee-award for competent and skilled plaintiff employment lawyers who take important discrimination cases to ensure enforcement of State and Federal laws meant to protect employees.

Under New Jersey law, an employment lawyer can also obtain an enhancement of his or her attorneys’ fees incurred in litigating the employment claim. This means that a Court can award a plaintiff employment lawyer an additional sum above and beyond the hourly rate for time expended in litigating the case. The New Jersey Supreme Court has ruled that higher contingency fee enhancements are appropriate when (1) there is no mechanism for mitigation of the risk of non-payment; (2) no possibility of payment from the client unless they receive an award of attorney fees; or (3) in cases in which the relief sought is primarily not monetary but equitable in nature.

Attorney fee agreements are always subject to attorney ethics rules which require that the law firm’s fee be reasonable given the totality of the circumstances. Prior to formalizing the attorney client relationship, it is important for the client to understand the fee arrangement and all other terms contained in the retainer agreement.

DISCLAIMER: The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.
Client Reviews
We had a wrongful termination issue combined with a denial of unemployment insurance. Chris Eibeler was our primary attorney. His partner Bob Smith also consulted and gave us good advice. They were both so kind, caring, and professional. They guided us though a very tough time and a positive outcome versus a prior employer. They were also able to reverse our denial of unemployment insurance. I cannot recommend Smith and Eibeler highly enough. The entire staff is very professional, personable, and caring. Tom Wilson
I went to Smith Eibeler LLC for a last minute unemployment matter. Chris, Diane and his staff were very professional and easy to talk to. They provided knowledgeable insight and also kept me in the loop with the what was happening. I would not hesitate to go to him again. John Jung
Chris Eibeler (and the whole team) is very knowledgeable in all aspects of employment/unemployment here in NJ. They break down the most difficult aspects of the law, which allows you to conceptualize and better understand the complexities of the NJ Labor & Employment system. Smith Eibeler should be your first call regarding any Employment, workforce, or Labor questions here in New Jersey. I highly recommend them. Brian Allen
I approached Chris Eibeler regarding an unemployment case in early 2016. Him and his staff are some of the most professional people I have ever dealt with. The process took a while, but his approach to hard questioning helped me win my case. He knows how to get the job done and I am glad I went to him. I would recommend him to anyone in the future who asks for a lawyer. Thank you Chris! Tim F.
I highly recommend the office of Smith Eibeler for employment related issues, particularly anything related to restrictive covenants or post-employment contracts. I found Smith Eibeler via the web and cannot believe how fortunate I am to have found them. My case was handled by Bob Smith who represented me in a potential lawsuit by my former employer for violation of a post-employment contract (not a restrictive covenant per se). Bob was professional, friendly, understanding, and above all extremely helpful. Bob helped me avoid a lawsuit and was extremely knowledgeable in this field. I was thoroughly impressed with his prowess. Hopefully I will never have a legal issue related to employment again, but if I do, I will not hesitate to retain Smith Eibeler again! Gavin Tully

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