A recent Forbes story, “How About Cutting Attorneys’ Fees from the Next NFL Concussion Settlement,” by Roger Groves raises concerns over the attorney fees in the next NFL Concussion Settlement.  The first settlement was valued at $765 million with the attorney fees pegged at $254 million or 33 percent.  The federal judge rejected the settlement as inadequate compensation for the relief that was agreed between the parties (damages plus long term care).

There are valid reasons for a contingency fee arrangement and a 33 percent fee award if and when there is a settlement.  In such arrangements, the attorneys essentially fund the litigation, incurring all or the vast majority of the costs, with all the risk that they may not prevail at all.  Some firms have gone bankrupt in taking on such cases.  High risk equals high return for taking that risk.

So what happens when the risk and related costs are reduced?  Is the fee reduced?  The risk and costs for the NFL concussion litigation should be less this time around.  Much of the high cost of expert witnesses and consultants has already been incurred.  The very significant attorney time needed to develop legal and economic theories and strategies is already done.  The process of interviewing and selecting experts, developing facts and evidence from interrogatories, depositions, requests to admit have already occurred as well, with some necessary tweaking for this round of plaintiffs.

At NALFA, we'll be reporting on the fee awards in both of these settlements.  They should make for good comparison.  Stay tuned.