Litigation funding is no longer novel, but for many law firms it remains unfamiliar. A significant number of the firms we work with— including large and sophisticated practices—are engaging with a litigation funder for the first or second time. When firms ask how best to navigate these relationships, our guidance consistently centers on three principles: Confidentiality, Conflicts of Interest, and Control . Addressed early and thoughtfully, these issues help preserve the integrity of the lawyer-client relationship while allowing funding arrangements to function as intended. Confidentiality To get your case funded, you’ll likely need to share certain confidential case information with a funder. (For an overview of what you’d want to include in a memo requesting funding, see this article with helpful tips.) Before sharing confidential information, lawyers must ensure they have their client’s informed consent. Ethical rules—including ABA Model Rules of Professional Conduct, Rule 1.6 and its state analogues—generally prohibit disclosure of client confidential information absent client authorization or implicit authorization arising from the representation. Once client consent is obtained, counsel should enter into a non-disclosure agreement with each funder before sharing substantive information. While the absence of an NDA does not mean that a defendant can obtain information shared with a funder—and courts generally deny discovery into litigation funding—NDAs remain an important tool for protecting confidentiality and reducing the risk of later discovery disputes. For an overview of what’s in an NDA, see this article on the subject). Best Practice Tip: Consider addressing litigation funding explicitly in engagement letters, including advance authorization to share confidential information with funders at the client’s direction. Conflicts of Interest Litigation funding should not create conflicts between a law firm and its client. While the lawyer-client relationship is paramount, it often overlaps with economic arrangements—hourly fees, contingency fees, or hybrid structures—whether or not funding is involved. For that reason, many claimholders elect to retain independent deal counsel to negotiate funding agreements. These negotiations frequently involve corporate, tax, and financial issues that fall outside the core expertise of trial counsel. Separating deal negotiation from litigation strategy can help preserve alignment and avoid conflicts. Best Practice Tip: Claimholders should consider using independent counsel—rather than litigation counsel—to negotiate funding agreements. Control In funded cases, claimholders retain control over litigation strategy and settlement decisions. Many regulatory proposals and court disclosure rules focus on whether a funder has approval rights over such decisions, reflecting the principle that third-party funding should not compromise attorney independence. For example, court rules in the District of New Jersey and disclosure requirements imposed by Chief Judge Connolly in the District of Delaware require disclosure of whether a third party has approval rights over litigation or settlement decisions. While funders are entitled to information about case developments—and may retain limited termination rights in circumstances such as fraud or material breach—they do not direct litigation or settlement strategy. Best Practice Tip: Clearly memorialize the funder’s lack of control rights in both the funding agreement and the engagement letter, using language that mirrors applicable disclosure rules where appropriate. Beyond the Basics: Building Successful Partnerships Beyond these core principles, successful partnerships between law firms and litigation funders depend on: Early Engagement: Involving funders early in case evaluation can provide valuable insights and streamline the funding process. Transparency: Regular conversations among counsel, client, and funder create alignment without compromising control. Realistic Expectations: Understanding the typical funding process timeline and requirements helps manage client expectations.
Litigation is inherently complex, dynamic, and increasingly expensive. Outcomes are difficult to predict, shaped by variables ranging from jurisdiction and judge to opposing counsel, discovery disputes, and motion practice that often unfolds in unexpected ways. In a volatile economic environment, forecasting the cost of a case can feel more like art than science. Yet budgeting remains one of the most important—and most overlooked—components of successful litigation. In the litigation finance context, budgets do more than estimate costs. They establish the financial architecture of a case. Funders commit a capped amount of capital for legal fees and case expenses. Law firms allocate resources within that constraint—and are typically responsible for any legal fees incurred above the budget. Meanwhile, claimholders are typically responsible for case expenses incurred above the budget, while their ultimate recoveries may depend on how closely spending tracks expectations. A budget that is too optimistic risks early depletion of funds. A budget that is overly conservative may deter funding altogether or unnecessarily suppress a client’s net recovery. Sound budgeting, by contrast, allows a case to be litigated through key inflection points—and, if necessary, to conclusion—without surprises that undermine strategy or alignment. Why Litigation Budgeting Is Hard—and Essential Despite its importance, budget creation is rarely taught in law school and is often learned only through experience. Most lawyers work on an hourly fee without a capped budget. Thus many excellent litigators have spent years trying cases without ever being required to forecast costs across an entire lifecycle. Litigation finance forces that discipline early. A funding request typically requires counsel to articulate not only the merits of a claim, but also the cost required to prosecute it and the relationship between spend, risk, and expected recovery. A commonly used rule of thumb is that expected damages should substantially exceed the amount of requested funding. While a 10:1 ratio is often the proposed rule of thumb, a meaningful spread between potential recovery and projected spend helps ensure that funders can achieve target returns, clients can realize meaningful net recoveries, and law firms can be compensated for their work without undue financial strain. What a Litigation Budget Typically Covers In funded matters, budgets generally distinguish between legal fees and case expenses , often with separate caps for each. Legal fees reflect hourly rates and anticipated staffing across phases of the case. Funders may cover a portion of those fees up to a cap, with law firms responsible for the balance and for any spend exceeding agreed limits. Expenses typically include items such as expert witnesses, discovery vendors, travel, local counsel, and court costs. These expenses are often funded at a higher percentage, again subject to caps. Clear allocation of responsibility above those caps is essential to avoid disputes later in the case. Core Questions That Drive Realistic Budgets Effective budgets begin with a clear understanding of the case itself. Among the most important questions: Scope of the case. How many claims are asserted? Are they tightly focused or sprawling? Nature of the claims . Certain claims—such as antitrust or patent matters in federal court—are typically more resource-intensive than straightforward commercial disputes. Jurisdictional considerations . Venue, procedural rules, and potential jurisdictional challenges can materially affect cost and duration. Damages theory and collectability . How will damages be proven? Are there risks to collection? Are non-monetary outcomes possible? Expected defense strategy . Will the defendant pursue aggressive motion practice or discovery tactics designed to increase cost and delay? Staffing model . What mix of partners, associates, and specialists is optimal at each stage? Time to resolution . Is the case likely to resolve early, or should it be budgeted through trial and appeal? Discovery: The Largest Variable Discovery is often the single largest expense—and the hardest to predict. When budgeting for discovery, it is critical to consider: The scope of discovery permitted in the jurisdiction The volume and sources of potentially relevant documents The complexity of collection, review, and production The number and location of depositions The need for expert testimony, often among the most expensive components of a case The availability and accessibility of key witnesses Thoughtful planning at this stage can materially reduce cost without compromising litigation objectives. The Role of Funders in Budget Discipline Experienced funders can play a constructive role in budget management—not by directing litigation strategy, but by helping track spend against expectations and flagging deviations early. Regular reporting and periodic check-ins allow counsel and clients to address emerging issues before they become financial problems. Funders also bring cross-case experience across jurisdictions, industries, and claim types that can inform contingency planning and resource allocation. Tips for Creating and Sticking to Budgets Effective litigation budgets are not static documents. They are management tools—designed to impose discipline, anticipate inflection points, and align incentives as cases evolve. In practice, several mechanisms can help law firms and clients create budgets that are both realistic and durable: Budget precedents . Where available, budgets from comparable matters—whether maintained by the law firm or the funder—can provide a valuable reality check. Historical data from similar cases often reveals cost drivers that are easy to underestimate in the abstract. Monthly flat-fee structures . Some firms have moved away from pure “fees-as-incurred” models in favor of monthly flat fees. When appropriately calibrated, this approach can smooth cash flow for the firm during slower periods while reducing the risk of budget overruns during more intensive phases of litigation. Staged funding . Staging capital by phase—such as through a motion to dismiss, summary judgment, or trial—can help ensure that spending remains tied to progress and performance. Phase-based caps encourage early reassessment without forcing premature strategic decisions. Reallocation flexibility . In some cases, budgets permit limited reallocation between categories, such as legal fees and expenses. When used carefully, this flexibility can accommodate unforeseen developments without requiring wholesale renegotiation of the budget. Taken together, these tools reinforce what effective budgeting is ultimately about: creating a financial structure that supports the litigation strategy, rather than constraining it.
The American civil justice system is premised on the existence of real and enforceable rights. Yet for a significant category of harm—injuries that are widespread in aggregate but modest when considered individually—this premise often fails in practice. Rights without practical remedies are rights in name only. And when the gap between entitlement and enforcement operates at scale, the consequences are not just individual—they are systemic. In a prior post , I traced the procedural evolution of mass actions from their equitable origins, through Rule 23, to the modern dominance of the MDL. That article explained how the American legal system developed tools to aggregate claims. This post asks why those tools matter. Consider a consumer injured by a defective product. If the injury is catastrophic, the economics of litigation may justify individual pursuit. But if the injury is less severe, or the causal chain complex, the calculus changes. The costs of prosecution (with lawyers billing hundreds if not thousands of dollars an hour) regularly exceed the potential recovery. In that common situation, the economically rational response is to do nothing—even when the claim is valid and the defendant culpable (e.g., 3M Combat Arms earplug litigation where claim value was as low as $5,000). This is not a doctrinal failure; it is a structural failure: Bilateral litigation assumes rough proportionality between claim value and litigation cost. When that proportionality breaks down, the system produces under-enforcement at scale. Mass tort aggregation mechanisms exist precisely to solve this problem. Contrary to the arguments of repeat defendants and their lawyers, mass torts are not procedural innovations designed to manufacture litigation where none should exist . They are a structural response to a structural deficiency—and a key way to ensure that the American civil justice system lives up to its core premise of equal access to justice. The Economics of Under-Enforcement Three categories of expense drive the access problem in complex litigation. First, discovery in product liability cases can generate millions of pages of documents requiring substantial attorney time and technology to analyze. Combined with related motion to compel and deposition practice, this is the billable-hour lifeblood of many defense firms. While extremely profitable for the well-placed defense lawyer , it is essentially unaffordable for most injured plaintiffs, pricing them out of justice. Second, expert witness expenses add another layer of cost. As background, establishing defect and causation in pharmaceutical, toxic exposure, and product defect cases demands specialists whose development, report drafting, and testimony can easily reach six or seven figures in hourly fees. In such situations, it is economically irrational for an individual plaintiff to hire an expert to opine on their injury given the anticipated ratio of cost to recovery. This reality is complicated by the fact that the class action mechanism, and its concomitant sharing of costs, is generally unavailable for personal injury mass torts . Third, time horizons exacerbate everything. It is not unusual for certain torts to run from five to ten years, with Talc being a key example . This means that attorney time (or funding) is advanced without guarantee of return with significant duration risk. These economic considerations are further aggravated by informational asymmetries between plaintiffs and defendants. Institutional defendants maintain in-house expertise, established relationships with specialized counsel, and the documents and data plaintiffs must obtain through discovery. They are repeat players who approach each case with experience accumulated over frequent litigation of the same issues. Individual plaintiffs, by contrast, are one-shot participants dependent on attorneys who often themselves face tremendous informational disadvantages. The result is a collective action problem. If pursuing a claim costs more than its expected value, rational actors will not sue—even when aggregate harm is substantial. Free-rider dynamics compound the problem: If one plaintiff invests in developing evidence, others benefit without bearing costs, reducing everyone’s incentive to act first. Defendants who cause diffuse harm face reduced liability exposure, and the incentive to invest in safety diminishes accordingly (e.g., the Opioid crisis where defendants ignored obvious safety risk). Crucially, the erosion of deterrence is not merely an individual injustice—it is a public welfare concern that compounds with every claim that goes unfiled. How Aggregation Restructures Litigation Economics The MDL process addresses these dynamics by restructuring litigation economics to make otherwise impractical individual claims economically rational. Shared discovery is perhaps the most significant efficiency. Corporate document productions occur once, not thousands of times. Depositions of key witnesses are taken for the consolidated proceeding and made available to all parties. The marginal cost of discovery for any individual plaintiff thus drops dramatically once centralized infrastructure is in place. Common motion practice produces similar efficiencies. Legal issues that recur across cases (e.g., preemption, general causation) are resolved through consolidated briefing. Coordinated expert development addresses the expense problem directly: plaintiff leadership invests in scientific evidence that benefits every plaintiff in the litigation. An individual whose claim could never justify a $500,000 expert investment can benefit when costs are shared across thousands of claimants. The cumulative effect is cost reduction. Claims that would be economically irrational to pursue individually become viable when aggregated. The collective action problem is solved, not by changing substantive law or lowering evidentiary standards, but by restructuring the economics of claim pursuit. Bellwethers and Informational Efficiency The economic efficiencies of the MDL process are mirrored by their informational efficiencies. Bellwether trials (representative cases selected for full trial proceedings) serve critical functions in this structure. They generate information that disciplines settlement negotiations. Before bellwethers, both sides operate with imperfect knowledge about litigation value. Bellwether outcomes provide hard data on how claims perform in actual adjudication, allowing both sides to update their assessments and negotiate from common informational foundations. Bellwethers also serve a quality-control function. Claims that cannot survive trial are revealed as such, and plaintiffs with similar claims must adjust expectations or withdraw. The process operates as a filter separating viable claims from those that cannot withstand adjudication. Addressing the Overreach Critique Critics contend that aggregation inflates claim values, coerces settlements regardless of merit, and manufactures litigation where none should exist. While ultimately outweighed by the benefits, these concerns deserve thoughtful engagement. The critique rests on an implicit comparison to bilateral litigation as baseline. But as the preceding analysis shows, bilateral litigation systematically under-enforces valid claims when harms are diffuse. If critics call aggregation “inflation,” we should recognize bilateral under-enforcement for what it is: deflation. If we accept that the bilateral baseline is itself distorted—producing under-enforcement rather than accurate enforcement—then aggregation’s effects look different. Enabling claims that would otherwise be impractical is not inflation; it is correction. The concern about settlement pressure similarly assumes defendants are coerced into paying for weak claims. But settlement in mass litigation is heavily mediated by information and procedural safeguards. Daubert motions screen expert reliability, summary judgment tests legal sufficiency, and bellwether losses expose plaintiff theories that cannot withstand adjudication. Defendants facing weak claims have ample opportunity to expose that weakness before settlement pressure materializes. Finally, the critique conflates access with abuse. That aggregation enables more claims does not mean it enables more frivolous claims . Centralized proceedings concentrate scrutiny on claim quality in ways bilateral litigation disperses. A transferee judge managing thousands of cases has strong incentives to identify deficient claims. MDL structure provides quality-control mechanisms bilateral litigation lacks. Conclusion Mass tort aggregation restructures litigation economics to make diffuse-harm claims practical. It does this by correcting asymmetries that would otherwise favor institutional defendants (with deep pockets and, at times, questionable judgment ). And by solving collective action problems that would otherwise produce under-enforcement. The alternative to aggregation is not a pristine bilateral system. The alternative is under-enforcement of rights and a free pass for corporate negligence . In that world, valid claims go unfiled, wrongdoing goes unaddressed, deterrence erodes, and the civil justice system serves institutional defendants more effectively than the common citizen consumer. Ignoring this dynamic—and its political ramifications—is dangerous. As Judge Learned Hand warned : “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”