The cost of litigation in a personal injury lawsuit can be financially devastating for plaintiffs, not to mention the time involved in reaching a final settlement. Sometimes, cases drag on for years. If the injured person is unable to work and has expenses for ongoing medical care, they may need money long before their lawsuit settles.
One way of obtaining funds is through pre-settlement funding, which enables plaintiffs to make ends meet without worrying about financial ruin.
Pre-settlement litigation funding is provided by a funding company to a plaintiff prior to a final settlement. The main focus of a lawsuit funding company is to provide cash advances to cash-strapped plaintiffs, who find their physical and financial lives turned upside down by an accident injury.
Funding companies are very selective in choosing cases to fund as the money they provide is offered as non-recourse funding, meaning plaintiffs only pay back the money, plus fees, if they receive a monetary settlement, and they only have to repay up to the amount of their share of the settlement in the event that the settlement is smaller than anticipated.
The loan company will do an assessment of the case to determine the likelihood that it will be decided in the plaintiff's favor. Based upon the information provided, the company estimates the value of the eventual settlement, 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, the loan and associated fees are paid to the loan company. For legal reasons, these advances are not characterized as loans and a lawsuit funding company is not part of a law firm.
Due to the risk involved in non-recourse funding, the fees associated with it can be significant and there are some attorneys who advise their clients against it because it is expensive and they do not want this burden to possibly compromise their case. These attorneys feel that if lawsuit funding does become necessary, it should be obtained in the smallest amount possible, not for any amount the plaintiff desires. Pre-settlement funding is serious business; it is not "fun money".
Fees will 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. Given the fees involved in pre-settlement funding, it is important for injured people to consider all other possible alternatives beforehand.
An obvious question might be why can't injured people borrow money from their lawyers? State bar associations prohibit this because when a lawyer becomes a creditor to a client, a conflict of interest is created that could interfere with the attorney-client relationship.
In order to avoid laws against charging excessive rates of interest (usury laws), the funds you receive from a pre-settlement funding company will not be described as a "loan". Other terms are used, such as "cash advance", 'investment", or "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, plus a fee (which may never occur). No matter what happens, a person who receives pre-settlement funding keeps the full amount of the advance.
Because of the high cost involved, any decision to accept an advance should be made very carefully. Fees will vary, so when seeking pre-settlement funding, it makes sense to check with several companies, to obtain the lowest possible fees.