Here you will find an increasing collection of materials (Attorney Tools) which we hope will be useful to lawyers in private practice representing injured people in claims against government, corporations and insurance companies.
A tool we make available here is a standard settlement agreement for employment discrimination cases (download Word doc).
Another tool we are making available is our Standard Civil Rights Retainer Agreement (download Word doc). It is designed to help solve a number of problems which arise in cases brought under laws which make awards of attorneys’ fees available to prevailing plaintiffs as well as more conventional forms of relief.
Briefly, our agreement solves the following problems in the following ways:
Problem: Defendants’ settlement offers can create conflicts of interest. If a defendant offers large damages and small fees, it is in the client’s interest to accept and the attorneys’ interest to reject the offer, and vice versa.
Solution: The client and the attorneys agree in advance to disregard a defendant’s division of any offer into fees and damages, and to treat all offers as lump sum offers, to be divided pursuant to the agreement.
Problem: Attorneys can’t know in advance whether their hourly fees will dwarf a standard percentage contingent fee, and need to protect their right to receive a contingency bonus — extra compensation for accepting the risk that they might not get paid at all — under either circumstance.
Solution: The agreement allows alternative methods of fee computation depending on the size of the lodestar. The fee is the larger of: a) a stated percentage (we use 40%) of the client’s damages, or b) the lodestar fee plus twenty percent of the client’s damages, as a contingency bonus. In either case the client gets dollar-for-dollar credit for any court-awarded fees.
Problem: Attorneys’ fees are taxable income first to the client and then to the attorneys.
Solution: The client assigns fee claims to the attorneys at the outset, authorizes the attorneys to proceed on the fee claims in their own names, and authorizes direct separate payment of fees to the attorneys. This is a developing area of the law, and no solution can be called foolproof, but this structure does as much as we can think of to avoid this problem. Since this page was first published, many courts have said that such as assignment will not free a client from tax liability, so current law in your federal circuit should be checked by a tax professional before tax forms are filled out.
Problem: Litigation expense payments are considered loans to the client and thus are not deductible in the year they are made.
Solution: The client doesn’t have to pay litigation expenses unless the case is won. This is a small sacrifice in most cases. Again, this is a developing area of the law, and no solution can be called foolproof, but this structure does as much as we can think of to avoid this problem.
This part of the site will also contain articles on new developments in the law of interest to civil rights lawyers. The first of these, EMPLOYER LIABILITY FOR SUPERVISORY SEXUAL (AND RACIAL) HARASSMENT AFTER FARAGHER AND ELLERTH (download PDF doc), was originally published in the Fall, 1998 edition of the RIGHTS, the newsletter of the State Bar of Wisconsin Individual Rights Section.