I have represented many dozens of innocent Defendants in BitTorrent copyright infringement litigation cases, and find that it becomes increasingly difficult to maintain regular hourly billing arrangements. The more work I do, the more money the client has to pay, and therefore, the more likely the client may, strictly for economic reasons, be pressured into entering into a settlement arrangement, even though doing that could essentially compromise his or her own integrity if he or she did not do the download.
To solve this dilemma, I thought long and hard and came up with a solution: An alternative fee agreement geared specifically for BitTorrent copyright infringement litigation defense cases, where the alleged infringer is innocent. The result was a “hybrid” agreement, which incorporates elements from different types of traditional agreements: the “contingency-fee,” “flat fee,” and “hourly billing” fee agreements.
How it benefits both the Law Firm and the Client
This “hybrid” alternative fee agreement for BitTorrent cases has several advantages. First, t is cost-effective for the Client in that we, the Firm, will not bill the Client at our hourly rate (except in the rare case where the Client lies to us). This can result in significant savings and enable us to employ an aggressive defense that would be otherwise prohibitively expensive. Additionally, this arrangement provides us with some funding we would not have in a traditional contingency-fee agreement. Finally, it provides us additional incentive to conclude your case in the best possible outcome, whether by trial or settlement.
Why we do it
The nature of BitTorrent copyright infringement defense is often that an individual defendant, faced with high legal bills, is forced into paying a settlement to avoid the costs of litigation. With this alternative fee agreement, we remove the pressure of the high fees the Client would incur as a litigation expense so the Client will not be forced into settling for the wrong reasons. Another incentive of our entering into this Agreement is that we believe we may be able to recover attorney fees and costs from the Opposing Party.
We Assume the Risk
In our traditional hourly billing agreement, if we are unable to prevail in obtaining an award of attorney fees and costs, the Client still has to pay our full fees at the Customary Billing Rate. However, in this hybrid agreement, if we are unable to prevail, the Client will only be obligated to pay the nonrefundable Flat Fee and Costs as agreed herein, providing you have abided by all the terms of this Agreement.
As always, every case is different, and this billing arrangement may not work in every copyright infringement case. Essential for this new alternative fee agreement to work is that the client be honest with me. I included a specific provision where, if I learn that the client lies to me about who did the download (and this affects our ability to prevail in the litigation), then the agreement will revert to an hourly rate.
Have any questions about our new Alternative Fee agreements? Contact us or give us a call at 407-965-5519.