Most brain injury attorneys work on a contingency fee: you pay no upfront attorney’s fee, and the lawyer is paid a percentage of what you recover — typically one-third, rising to around 40% if the case goes to trial. Case costs (experts, filing fees, records) are separate from the fee, and ethics rules require the whole arrangement to be in a written agreement you sign. Understand the math before you sign.
How contingency fees work
A contingency fee means the attorney’s fee is contingent on the outcome: the lawyer gets paid if you recover money, whether by settlement or verdict, and gets no attorney’s fee if you don’t. This structure exists because injury victims — especially families facing a brain injury’s medical bills and lost income — usually can’t afford to pay a lawyer by the hour while also paying for treatment.
The arrangement aligns incentives in an obvious way: the lawyer only gets paid when you do, and a larger recovery means a larger fee. That alignment is genuinely valuable. But it also means you should understand exactly what percentage applies, what counts as “recovery,” and what gets subtracted before your share is calculated — because those details determine how much of a settlement actually reaches your family.
Contingency fees are the norm in personal injury work, including brain injury cases. Nolo’s legal encyclopedia describes the standard arrangement plainly: most personal injury lawyers work on contingency, meaning they don’t get paid until you get paid, and when you do, the lawyer takes a percentage of what was recovered (source). If an attorney asks a brain-injured client for a large upfront retainer instead, that’s unusual enough to warrant a careful explanation — and a second opinion.
One boundary worth knowing: contingency fees are prohibited in some contexts. Under the ABA Model Rules, a lawyer may not charge a contingency fee for representing a defendant in a criminal case, nor a fee contingent on securing a divorce or on the amount of alimony or support in a domestic relations matter. Personal injury cases are the classic permitted use.
Standard percentages: the 33–40% range
The industry-standard contingency percentage for personal injury cases is one-third — 33.3% — of the recovery when the case settles before a lawsuit is filed. If the case proceeds to litigation and especially to trial, the percentage commonly rises to 40%. Nolo describes one-third as “pretty standard” and notes the sliding scale explicitly: many agreements provide that the percentage goes up at a certain stage of the case, such as when a lawsuit is filed (source).
A typical sliding scale looks like this:
- 33.3% if the case settles before a lawsuit is filed
- 40% if a lawsuit is filed, through trial and appeal
Some agreements add intermediate steps (for example, a higher percentage once trial begins), and percentages can vary by firm, case complexity, and state. What matters is not whether the scale matches some universal template — it doesn’t — but that the agreement states each percentage clearly and ties each one to a defined trigger: settlement, filing, trial, appeal.
The percentage rises for trial because trial multiplies the lawyer’s work and risk enormously — depositions, experts, motions, days in court. Cases that go to trial also typically resolve for more, though that’s never guaranteed.
Brain injury cases deserve a specific note here. Because these cases often require expensive experts (neurologists, neuropsychologists, life-care planners, economists) and extensive evidence development, they are costlier for the firm to carry than a straightforward fracture case. That doesn’t automatically justify a higher percentage, but it does explain why firms evaluate TBI cases carefully before accepting them — and why you should ask how the firm finances case costs.
Also understand: the percentage must be reasonable. Ethics rules in every state require that fees be reasonable in light of factors like the time involved, the difficulty of the case, and the results obtained. A percentage far above the local norm for a simple, quickly settled case could be challenged — though in practice, the standard one-third/40% structure is widely accepted as reasonable for injury litigation.
Fees vs. costs: the distinction that matters most
The contingency percentage is the attorney’s fee. Costs (expenses/disbursements) are the out-of-pocket spending to build the case. They’re separate — and confusing them is the most common source of settlement-time surprise.
Typical case costs in a brain injury matter include:
- Filing fees and court costs
- Medical records retrieval charges
- Police report and records fees
- Expert witness fees — often the largest single cost in a TBI case, running into tens of thousands of dollars for top specialists
- Neuropsychological testing and independent medical evaluations
- Deposition costs (court reporters, transcripts, videographers)
- Trial exhibits, animations, and demonstratives
- Travel for the legal team and experts
- Postage, copying, and administrative expenses
In most contingency arrangements, the firm advances these costs as the case proceeds and is reimbursed from the recovery. That’s standard and usually beneficial — few families could fund $30,000 in expert fees out of pocket mid-case. But “advanced” doesn’t mean “free”: the agreement should state clearly whether you reimburse costs from the recovery, and critically, what happens to advanced costs if the case loses (more on that below).
When interviewing attorneys, ask for a realistic estimate of the costs a case like yours is likely to incur. An experienced brain injury attorney can give you a range based on similar cases. Vague answers here are a yellow flag — cost planning is part of competent case management.
Before or after: the math that changes your check
Here’s the single most important arithmetic in the fee agreement: are case costs deducted from the recovery before or after the contingency percentage is calculated? The difference is real money.
Take a $300,000 settlement with a 33.3% fee and $30,000 in advanced costs:
Costs deducted first (before the fee is calculated):
– Recovery: $300,000 − $30,000 costs = $270,000
– Attorney’s fee: 33.3% × $270,000 = $90,000
– Your share: $270,000 − $90,000 = $180,000
Fee calculated first (costs deducted after):
– Attorney’s fee: 33.3% × $300,000 = $100,000
– Your share: $300,000 − $100,000 − $30,000 costs = $170,000
Same settlement, same percentage, same costs — a $10,000 difference to you based solely on the order of operations. Neither method is unethical; both are used. But the agreement must state which one applies, and you should know before signing. Nolo specifically flags this as a key question: find out whether litigation costs are taken from the recovery before or after the attorney takes the contingency percentage (source).
The ABA Model Rules require exactly this disclosure. Rule 1.5(c) provides that a contingent fee agreement must state “whether [litigation and other] expenses are to be deducted before or after the contingent fee is calculated” — it’s not optional fine print, it’s a mandated term (source).
What the written agreement must contain
Under ABA Model Rule 1.5(c) — the baseline ethics rule adopted in some form by nearly every state — a contingent fee agreement must be in a writing signed by the client. The rule specifies what that writing has to cover:
- The method for determining the fee, including the percentage or percentages that accrue to the lawyer in the event of settlement, trial, or appeal. Every tier of a sliding scale must be stated.
- Which litigation and other expenses will be deducted from the recovery — an itemized understanding of what counts as a reimbursable cost.
- Whether expenses are deducted before or after the contingent fee is calculated — the math question above.
- Clear notice of any expenses the client will be liable for whether or not the client prevails — so you know your worst-case exposure upfront.
And the rule doesn’t end at signing: when the matter concludes, the lawyer must provide a written statement showing the outcome and, if there was a recovery, the remittance to the client and how it was determined. You are entitled to a full accounting — gross recovery, fee, each cost, liens paid, and your net. (Source for all of the above.)
Read the agreement before signing, not after. Ask what happens in each scenario — early or late settlement, trial win or loss, changing attorneys mid-case. Keep a signed copy, and ask until anything unclear is clear.
State variations exist. Some states impose additional requirements — for example, specific disclosures, font-size rules, or a client’s bill of rights attached to the agreement. Your attorney should be following your state’s version of the rule; the ABA model is the floor, not the ceiling.
What happens if you lose
“If we lose, do I owe anything?” is one of the most important questions you can ask, and the answer varies:
- The attorney’s fee: Under a pure contingency agreement, no recovery means no fee. The lawyer absorbs the value of their time. This is the core promise of the contingency model.
- Advanced case costs: This is where agreements differ. Some firms write off advanced costs if the case loses — you owe nothing. Others require the client to reimburse costs even without a recovery. The ABA rule requires the agreement to tell you which it is, in advance. Make sure you know.
- The other side’s costs: In American courts, each side generally pays its own attorney’s fees, but court costs can sometimes be assessed against the losing party. Your agreement should address this exposure.
For brain injury cases specifically, the cost question carries extra weight because the costs are higher than average. A case that goes to trial can accumulate tens of thousands of dollars in expert and litigation expenses. Knowing whether those are forgiven on a loss — before you’ve spent two years in litigation — is essential to an informed decision.
There’s a related scenario: what if you fire the attorney, or the attorney withdraws? Most agreements provide that the discharged attorney may claim a fee from any eventual recovery for work performed, sometimes under a quantum meruit (fair value) theory. If you’re considering changing counsel, understand the financial mechanics first — our guide on how to find the right brain injury attorney covers the selection side.
Key takeaways
– Contingency means no upfront attorney’s fee: the lawyer takes a percentage — typically 33.3% pre-suit, up to 40% in litigation — of what you recover.
– Case costs (experts, filing fees, depositions) are separate from the fee; the firm usually advances them and is reimbursed from the recovery.
– Whether costs come off before or after the fee percentage is calculated changes your net by thousands — the agreement must state the method.
– Ethics rules (ABA Model Rule 1.5(c)) require a written, signed agreement covering the percentages, deductible expenses, the before/after math, and your exposure if you lose — plus a written accounting at the end.
– Ask what you owe if the case loses, and get the answer in the agreement, not just in conversation.
Frequently asked questions
Can I negotiate the contingency percentage?
Sometimes, particularly on very large or straightforward cases — but the lowest bidder isn’t always the best advocate for a complex brain injury case.
Do I pay anything out of pocket while the case is pending?
Usually not for attorney’s fees or advanced costs. You do pay your own medical bills as they come due (through health insurance, PIP, or providers willing to wait for settlement), and you bear your own living expenses. Discuss any hardship provisions with your attorney.
What about the medical liens on my settlement?
Health insurers, Medicare/Medicaid, and sometimes treating providers assert liens against your recovery, paid from the settlement before your net share. Ask how lien resolution is handled and whether there’s an additional charge for it.
For background on the claims these fees attach to, see how brain injury settlements are calculated and how long a brain injury claim takes.
This article is general information, not legal or medical advice. It does not create an attorney-client relationship. Consult a qualified attorney about your situation, and see a doctor promptly for any head injury.