Every so often, someone walks in—usually one of two types:
- A startup founder with bold ideas, big decks, and a head full of TechCrunch buzzwords, or
- A foreign national who just learned that American lawyers sometimes work on contingency—and is astonished we don’t all do it.
And the question inevitably comes:
“Hey, I’ve got a great commercial case. Will you take it on a pure contingency?”
No. We won’t. Not for full-scale commercial litigation. And few, if any, respectable commercial litigation attorneys will.
We will work with clients to create cost-sensitive models. We do offer up to 50% discounts under our Small Business Program—especially for mission-aligned companies and those facing existential threats. That’s part of our Christian ecumenical mission rooted in Catholic social teaching. And we’re proud of it.
Similarly, if we believe in a case, and have a strong working relationship with the client, in select cases, usually after the motion to dismiss is decided, we’ll transition to a hybrid model. Usually a significantly discounted hourly rate and a percentage of the upside.
But a pure contingency fee for complex commercial litigation?
Nope. Here’s why.
First, Let’s Talk About Economics
If you’re profit-maximizing—and let’s be honest, that’s why most folks float contingency—you need to understand the economics of litigation.
The hourly business litigation model is simple:
- Secure solid clients
- Bill consistently
- Do good work
- Get paid regularly It’s boring. It’s stable. It works.
Contingency? Whole different beast:
You don’t just need to win the case. You need:
- Clear liability
- Strong, provable damages
- A collectible defendant
- A decent judge
- An opposing counsel that’s either reasonable, folds, or is not a good lawyer
- And a little luck
And even then, you still need the client not to cause chaos halfway through. Which they can, because, ultimately, it’s their case, and they can decide—or refuse—to settle at any time.
In an hourly case, we can work with what we have.
In a contingency case, you better win big—or you lose your shirt.
Slam Dunk Commercial Litigation Cases? That’s a Red Flag
Let me let you in on a little secret:
If you ever go to a commercial litigation lawyer and tell them it’s a “slam dunk” case, they’re already preparing to run.
Why?
Because the strongest cases usually come from clients who understand complexity—and the weakest ones come from clients who think litigation is a sure thing. It’s not.
You don’t know what documents are out there. You don’t know how witnesses will perform. You don’t know what judge you’ll get. The ‘smoking gun evidence’ might get excluded on evidentiary grounds? Fair? Perhaps not. But ask yourself: why do we have an appellate system? Judges make mistakes all the time. You get a bad ruling, a witness dies, or your opposing counsel goes scorched earth (subpoenas the college ex that has nothing to do with the case, we’ve seen it happen), and your case is up in flames.
We’ve seen cases flip 180 degrees based on one bad email or one surprise witness.
So no—we don’t do slam dunks. We do strategy.
Second, There’s No Scale in Commercial Litigation Work
You want to know when contingency works?
False Claims Act cases.
Employment discrimination cases.
Personal injury.
These cases often follow templates. We know the fact patterns. We know what the government wants. We know how to prep the client and package the story.
It’s not that we don’t strategize. We do—with the same rigor as our commercial cases. It’s part of our ethos and competitive value.
But here’s the thing. These cases are largely repeatable. And if you can do one, you can do 40.
Commercial litigation? Every case is unique.
No templates. No shortcuts. No shortcuts in the law, the facts, or the discovery. Every contract, every fight, every damages theory is bespoke.
It’s like building a new machine from scratch, every time.
Injury and employment are like a Ford car built on an assembly line. Business litigation work is like a custom made car.
That’s not scalable. That’s not safe. And it sure isn’t sensible to do for free.
Third, You Have to Win and You Have to Collect
We’ve seen it too many times:
The case is won. The judgment comes down. Big number. Victory.
And then?
The defendant disappears. Or files bankruptcy. Or is legally structured to be uncollectible. Or appeals and drags it out for two more years.
Contingency fees don’t pay the rent if the check never clears.
And commercial litigation defendants are crafty. Experienced business litigation lawyers know this.
Fourth, We’re Your Commercial Litigation Lawyer, Not Your Series A Investor
Here’s the friction most commercial litigation clients never understand:
When you ask us to take your business litigation case on contingency, you’re not just asking us to take legal risk.
You’re asking us to be your investor.
We’re fronting money, time, staff hours, court costs, expert expenses—and we don’t get paid unless you hit the jackpot.
But unlike real investors, most contingency clients still want to:
- Demand regular updates
- Push their own strategy
- Argue over messaging
- Act like they’re the ones funding the case
It’s backwards. And it doesn’t work.
In contingency civil rights or abuse cases, our clients have moral authority. They’ve suffered. They’ve survived. Their stake is different.
But in a commercial dispute—between companies, founders, or partners—there’s no such moral high ground.
We carry the risk. You don’t.
And yet, despite that imbalance, attorney ethical obligations still apply. Which means:
- You can fire us at any time, leaving us (at best) fighting with your replacement counsel for scraps—years later, if and when you collect.
- You can panic and accept a lowball settlement—not because the case is weak, but because you lack emotional regulation or just get bored.
- Or go the other direction—refusing a good settlement because you want to “stick it to the man,” which is easier when you have zero skin in the game.
So when you ask us to take your commercial case on pure contingency, you’re really asking us to bet the solvency of our firm on:
- Your word
- Your version of the facts
- And your emotional stability
After—let’s be real—you’ve already found yourself in a situation where you got outmaneuvered by a more sophisticated party.
Essentially, you want us to take all the risk for your losses—with speculative upside.
Who would take that trade?
Not us.
Fifth, We Still Have to Pay Our People
This one seems obvious, but it’s worth stating:
Our commercial litigation lawyers don’t work for free. Our staff doesn’t work for free.
So if we say yes to your contingency case, that means we are paying them while you pay nothing, for years, with no guarantee of return.
If you ran a business, would you take that deal?
Yes, We’ll Take Some Body Blows—But Only for the Right Clients
At Equal Justice Solutions, we do take cases that lose money—on purpose.
- Civil rights violations
- Serious abuse cases
- Major institutional misconduct
That’s our mission. It aligns with our public benefit corporation status and our moral obligations.
But we’re not going to bankrupt ourselves because a founder wants to play tycoon and didn’t read the fine print on their vendor contract.
So… What Do We Offer Instead?
There’s a passage in the Gospels where Jesus performs a miracle at Cana. He turns water into wine. But before that?
He made the servants carry the water. (John 2:7)
They had to do their part. They had to haul heavy jars. Then the miracle came.
We’re not claiming to be miracle workers. But we do believe in transformation. And we also believe: if you want help, you need to do your part.
Final Word: Why We’re Transparent About This
In Leviticus 19:36, the Torah says:
“You shall have honest scales and honest weights.”
That applies here.
We owe you the truth:
Commercial litigation on contingency is usually a bad idea.
It’s unstable. It’s unpredictable. It’s risky. And it creates the worst possible client-lawyer dynamics.
If you have a real case, we’re ready to hear you out.
If you need fee relief, we’ll talk about our program.
But if you want us to bankroll your startup fight on the promise of a “slam dunk,” kindly pound rocks.
