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Litigators Corner:
The Winnable Contingent Fee Case -- Ten Years Later

By Joseph N. Hosteny of Niro, Scavone, Haller & Niro

Regular IP Today columnist Joseph N. Hosteny is an intellectual property litigation attorney with the Chicago law firm of Niro, Scavone, Haller & Niro. A Registered Professional Engineer and former Assistant US Attorney, his articles have also appeared in Corporate Counsel Magazine, The Docket (American Corporate Counsel Association), American Medical News, Inventors’ Digest, Litigation Magazine and Assembly Engineering Magazine. Mr. Hosteny can be reached at (312) 236-0733, or by e-mail at, or by visiting his web site at

More than ten years ago, in November, 1998, I wrote a column titled "How to Recognize the 'Perfect' (i.e., 'Winnable') Contingent Fee Case." I recently wondered whether those guidelines would still hold up today. Have events since then changed them? Are they still valid? I concluded that, with some changes, these guidelines are still good ones.

If there is one overarching guideline, it is still: Be selective. Don't take a case just to have a case. Any really winnable contingent fee case must have reasonable prospects of success, a good client and real damages. Lacking even one of these characteristics means you may be embarking on a trip to hell that you will wish you had never begun.

Do not think that the case you take is a guaranteed winner. I was speaking recently with a personal friend -- a non-lawyer. He was complaining about what appeared to him to be a case with a windfall recovery for the lawyers. He wondered why such a windfall should be permitted, and why lawyers are so greedy. I told him my "Mickey Mantle Story": The great Yankee batted about .298 for his career. In other words, Mickey Mantle did not even get to first base seven out of every ten times he went to the plate.

I never forecast the chances of success for a prospective client in any kind of case. The changes in the law in the last fifteen years have made it very difficult to pred...

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