Pre-Settlement Lawsuit Funding in Personal Injury Cases
By Aaron Larson
- How Pre-Settlement Lawsuit Funding Works
- When Is Pre-Settlement Funding Appropriate?
- Ethical Issues
- Legal Issues
Pre-settlement lawsuit funding usually comes in the form of non-recourse cash advances, provided to the injured person in return for a promise to repay the advance after the lawsuit settles or a victory in court. As this is "non-recourse" funding, an injured person does not have to repay the advance if they are unsuccessful in the lawsuit, and only has to repay up to the amount of their share of the settlement in the event that the settlement is smaller than anticipated. Due to the risk involved in issuing a non-recourse funding, the fees associated with pre-settlement funding can be significant. There are legal, ethical, and practical issues which should be taken into consideration, if you are considering applying for pre-settlement funding.
An injured person contacts a company that offers pre-settlement lawsuit funding, sometimes at the suggestion of an attorney. The finance company contacts the lawyer who is handling the case, and obtains information about the case. Based upon that information provided, the loan company estimates the value of the likely eventual settlement or verdict, and offers a cash advance to the injured person based upon that estimate. The fee may be a flat fee, or a monthly fee that accrues each month the loan is outstanding. When the case settles, or the defendant pays after losing in court, the loan and associated fees are paid to the finance company.
These advances are offered as non-recourse funding, which means that an injured person has no obligation to repay if the lawsuit is lost. Similarly, if the ultimate settlement or verdict is smaller than anticipated, the amount that must be repaid never exceeds the amount of the injured person's share of that verdict or settlement. For legal reasons, these advances are not characterized as loans.
Amounts available vary significantly, depending upon the nature of the case and the company involved. Many companies offer pre-settlement funding amounts between $500 and $25,000. A few offer amounts up to $100,000. Fees also vary depending upon the company and the type of case. Some companies will fix the fee for the advance up front. Others will charge a monthly fee for each month between the time the funding is issued and when it is repaid, sometimes as high as 15% per month.
Litigation can take a very long time. Sometimes, cases drag on for years. While cases are pending, even where an injured person's attorney is paying all of the legal expenses associated with the litigation, the injured person has to have enough money to get by. If the injured person is unable to work, has reduced income, or has expenses associated with care or disability, it may not be possible to wait until the end of the lawsuit before obtaining funds.
Given the fees involved in pre-settlement funding, it is important for injured people to consider any available alternatives. This type of financing should ordinarily be the last resort. The fees are premised upon the risk to the lender associated with non-recourse lending, but keep in mind that these companies choose their cases carefully in order to minimize risks, and if they offer you an advance they believe that you will receive money from your lawsuit. If you decide to obtain pre-settlement funding you should check with several companies, in order to obtain the most favorable terms.
A question that perhaps seems obvious is, why can't injured people simply borrow money from their lawyers? The answer is that state bar associations recognize that when a lawyer becomes a creditor to a client, a conflict of interest is created that may interfere with the attorney-client relationship.
Sometimes an attorney won't want to sign any contract with a settlement financing company, and some states prohibit lawyers from signing onto liens of the type necessary to secure this type of funding. As a result, typically companies require that the injured person sign the contract, and that the attorney sign an acknowledgement of the client's instruction that the loan and associated fees be repaid from any eventual verdict or settlement.
At least one state (Florida) prohibits lawyers from participating in the settlement funding company's evalaution process. Absent lawyer invovlement, it is unlikely that a finance company would be able to obtain enough information about a case to risk issuing non-recourse funding.
In order to avoid usury laws (laws against charging excessive rates of interest), the funds you receive from a pre-settlement funding company will not be described as a "loan". For example, the advance might be described as a "cash advance", 'investment", or as "venture capital". Technically, as the contract is not to repay the amount received but is instead a promise to pay a portion of any eventual verdict or settlement (which may never occur), these amounts are not loans. No matter what happens, a person who receives pre-settlement funding keeps the full amount of the advance.
A Michigan court recently held invalid a lawsuit funding contract where the defendant's liability had been established, holding that as the plaintiff was certain to recover some amount of money the funding company's advance was no longer contingent, and thus that the plaintiff only had to repay the principal (without interest) under Michigan's usury laws. While other states may draw different conclusions from similar facts, it remains necessary that the amount be in some manner contingent - otherwise, it is a high interest loan.
An Ohio court similarly discharged a plaintiff's obligation under a lawsuit funding contract on the basis of a common law doctrine called "champertry" - a prohibition against the sale of a party's interest in a lawsuit. The court's rationale was that lawsuit funding company sought to profit from the injured woman's case, that lawsuit funding could create a disincentive to settle a case, where the plaintiff would have to pay the entire amount of the settlement to the finance company. A response to the first argument is that if it is acceptable for an attorney to profit from an injured person's case, why should it not be permissible for a finance company? A response to the second argument is that had the woman not received the funding, she may have been forced to settle the case for far less than its value.
Another concern might be that lawsuit funding might encourage plaintiffs to file frivolous lawsuits. This, however, does not consider the fact that lawsuit funding companies want to be repaid, and thus aren't likely to offer funds to plaintiffs who don't have strong cases justifying substantial awards. Similarly, it will often be in the strongest cases that a plaintiff is most in need of money before the conclusion of a lawsuit, and the absence of sources of funding can force premature and inadequate settlements.
Pre-settlement lawsuit funding should be considered as a last resort, after all other funding options are exhausted. Due to the high cost of this type of funding, any decision to accept an advance should be made very carefully. When seeking pre-settlement funding, it makes sense to check with several companies, to obtain the lowest possible fees.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.