Clark: “Contingency fee” is not Latin for “blank check.”
Sorry, PI attorneys. NRCP 68 is not a judicial gift card redeemable for the entire fee agreement. It is to compensate for the consequences of rejecting a reasonable offer—not retroactively transform 4 years of litigation into a 24-day billing event.
Under Rule 68, you can serve an offer of judgment. If you do better than that offer at trial, you get to recover all of your *post-offer* attorney’s fees.
Here, P served an OOJ for $2M, 4 years after filing suit, and 24 days before trial. P beat the OOJ at trial (won $2.045M).
P’s attorneys then argued that they were entitled to attorney’s fees in the entire amount of their contingency fee (~$800k), even though, obviously, there was 4 years of attorney work done before the OOJ.
Basically – you don’t get to count the entire contingency fee as post-OOJ attorney’s fees, because $800k for 3 weeks of trial prep + trial is an unreasonable attorney fee. The court has to do some sort of apportionment to determine the value of attorney’s work pre- and post-OOJ.
What does the lawyer care? They get their $800,000. It is the client who loses the $800,000 from their $2 million. It could have been the insurer that had to pay the victim/client $2 million and the lawyer $800,000. The “PI attorney” has lost nothing.
True, PI lawyers constantly tell people with their ads how much they care about their clients and how they charge “fair” fees (not like the other guys). Since they have to pay for ads to state they care, they must truly care.
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Anonymous
July 7, 2026 9:52 am
Re: election suit. The Nevada Constitution gives the legislature the ability to make laws permitting someone who doesn’t meet the Nevada residency requirement, but isn’t a resident of any other state, to vote for President and Vice-President. The Complaint curiously omits any reference to this last line of Article 2, Section 1, even while quoting most of it. It’s not clear to me whether the citizen-child gets a ballot representing all the choices of a specific precinct (293D.220 assigns a precinct), or just the President/Vice President options. I can’t imagine this affects many people anyway.
Section 1. Right to vote; qualifications of elector; qualifications of nonelector to vote for President and Vice President of United States. All citizens of the United States (not laboring under the disabilities named in this constitution) of the age of eighteen years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now or hereafter may be elected by the people, and upon all questions submitted to the electors at such election; provided, that no person who has been or may be convicted of treason or felony in any state or territory of the United States, unless restored to civil rights, and no person who has been adjudicated mentally incompetent, unless restored to legal capacity, shall be entitled to the privilege of an elector. There shall be no denial of the elective franchise at any election on account of sex. The legislature may provide by law the conditions under which a citizen of the United States who does not have the status of an elector in another state and who does not meet the residence requirements of this section may vote in this state for President and Vice President of the United States.
Yeah, omitting that last sentence while quoting the first part is certainly a choice. It’s the specific exemption to the rule in the first part of the section.
something, something, duty of candor to the court.
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Anonymous
July 7, 2026 10:06 am
“When he was arrested on July 2, Prado told police ‘the situation was blown out of proportion,'” as was his penis after downing some Little League-funded Blue Chews
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Anonymous
July 7, 2026 10:50 am
An amazing couple days for the US soccer team. Managed to squander any good will we had as underdogs, then got annihilated by a country the size of Maryland. Sad way for a very fun run to end.
It really is a shame our best athletes don’t play soccer. Imagine Myles Garrett at center back with Bijan Robinson, Jamarr Chase, and Derrick Henry on the attack.
We forget that the U.S. makes up 4.2% of the world population. Why we believe that we have some incarnate right to dominate all sports is ridiculous. Why we presume that Myles Garrett, Bijan Robinson or Jamarr Chase would make better soccer players than the actual best players in the world is ridiculous.
Lionel Messi 5’7″ 148 pounds
Kylien Mbappe 5’10” 165 pounds
Mo Saleh 5’9″ 157 pounds
Erling Haaland 6’5″ 200 pounds
Do we think that, though? Sure we hope to dominate in sports we care about. But all sports? I don’t see anyone saying we should be dominating cricket or table tennis
Speak for yourself. There is no reason Americans can’t get their wickets sticky on the international stage. Even if you gotta know what a crumpet is to understand cricket.
Hi, long time soccer player here. What many people dont realize is that the USA is unique in making soccer a “pay to play” sport where its mostly people from affluent or above average means able to scale up in the hierarchy. Many pro soccer players have complained that this model needs to change if the USA wants to be a legitimate contender on the world stage. Trust me when i say i have seen many great soccer players go unnoticed because they simply dont have the means to play club or travel to tournaments. and this was going back 30 years ago when i was a kid. its only gotten worse. for a personal example, i was recruited to play on the U-16 USA developmental team, but had to pay for my way to training and do forth (including travel) (this was around 1998-99), something i could not afford living with a single mom. sometimes i wonder what could have been if i had the means
We could be better if our country prioritized soccer more than we do (not to say that it’s a bad thing) but there is very little chance any of those guys would ever be the among best soccer players in the world.
Soccer sucks on television and doesn’t easily accommodate commercial breaks. That’s why it has been and always will be marginal in the US. Follow the money.
Longtime plaintiff attorney here, with many years of ID before that. The theory I guess is that a contingency fee hasn’t been incurred until there is a judgment. I always thought that was a pretty shaky argument TBH. This brings into focus the importance of timing and amount, and of giving the other side plenty of rope (e.g. all your evidence and a good 30-45 to evaluate and report on it before you drop the OJ) as early in the case as possible so that you can have them unreasonably reject a reasonable offer as early as possible.
Further to that, in a larger case, I would accompany the OJ with a detailed demand letter explaining all the reasons why the offer is reasonable and including references to specific documents, records etc. I would close with a magnanimous offer to leave the OJ open for an extra week or two beyond the deadline to make sure they have plenty of time to review. You are writing something to be read by the judge a year or so from now, not really for opposing counsel and the insurance company, who are likely to blow you off at that point regardless of what you give them.
Well, yes, but that’s not what you call it… until later. Too many times I have seen someone just drop a number seemingly out of nowhere with nothing like that to accompany it. Makes arguing agains the OJ much easier if you are defending against a fee application. It is like someone who makes a policy limit demand way too early and then expects to collect on an excess judgment. Give the other side lots of rope. You will be glad you did.
Last edited 4 days ago by anonymous
Guest
Anonymous
July 7, 2026 8:03 pm
Both Lytle and Clark are, frankly, loathsome, and together they gut fee recovery in this state. Take Lytle: the district court set the lodestar at a rate ABOVE what the firm actually billed, on the sound logic that the firm could have charged more. Pickering reverses this, joined by Herndon and Cadish, none of whom, on the evidence, has ever drafted a fee petition in her life. The lesson she has taught the working practitioner is grotesque: bill at the very top of the market in the first instance, because restraint will be used against you. Punishing a lawyer for undercharging is an assault on the profession, and I say that AV-rated and admitted since the late 70s. Then Clark, where Stiglich en banc overrules Capriati and tells the contingency bar that its full fee is not ‘incurred’ post-offer but must be reduced to some judge’s guess at the ‘value of the work performed.’ Value of the work performed. As if the bench has the first idea what the work is worth. Parraguirre alone had the wit to dissent on stare decisis, which becomes sacred precisely when honoring it would cost lawyers nothing and abandoning it costs us a fortune. Not since Argentena, which crippled the charging lien and left practitioners who did the work unable to secure their fee, has this Court failed the working attorney so completely. It is one continuous war on attorney recovery, and I have appeared before these jurists enough to have predicted the error before it issued. ‘I don’t believe in principle, But O, I du in interest.’ – James Russell Lowell
Clark: “Contingency fee” is not Latin for “blank check.”
Sorry, PI attorneys. NRCP 68 is not a judicial gift card redeemable for the entire fee agreement. It is to compensate for the consequences of rejecting a reasonable offer—not retroactively transform 4 years of litigation into a 24-day billing event.
So, the easy way around this is to give everything before you file. Then, the minute after you file, serve your reasonable OJ.
How can a contingency fee be conflated with a blank check?
Under Rule 68, you can serve an offer of judgment. If you do better than that offer at trial, you get to recover all of your *post-offer* attorney’s fees.
Here, P served an OOJ for $2M, 4 years after filing suit, and 24 days before trial. P beat the OOJ at trial (won $2.045M).
P’s attorneys then argued that they were entitled to attorney’s fees in the entire amount of their contingency fee (~$800k), even though, obviously, there was 4 years of attorney work done before the OOJ.
Basically – you don’t get to count the entire contingency fee as post-OOJ attorney’s fees, because $800k for 3 weeks of trial prep + trial is an unreasonable attorney fee. The court has to do some sort of apportionment to determine the value of attorney’s work pre- and post-OOJ.
I understand the rule, I just don’t understand how $800k is a blank check.
What does the lawyer care? They get their $800,000. It is the client who loses the $800,000 from their $2 million. It could have been the insurer that had to pay the victim/client $2 million and the lawyer $800,000. The “PI attorney” has lost nothing.
Believe it or not some attorneys care about their clients.
True, PI lawyers constantly tell people with their ads how much they care about their clients and how they charge “fair” fees (not like the other guys). Since they have to pay for ads to state they care, they must truly care.
Re: election suit. The Nevada Constitution gives the legislature the ability to make laws permitting someone who doesn’t meet the Nevada residency requirement, but isn’t a resident of any other state, to vote for President and Vice-President. The Complaint curiously omits any reference to this last line of Article 2, Section 1, even while quoting most of it. It’s not clear to me whether the citizen-child gets a ballot representing all the choices of a specific precinct (293D.220 assigns a precinct), or just the President/Vice President options. I can’t imagine this affects many people anyway.
Also to save folks the frustration of looking for the Complaint in the RJ (it isn’t there) or trying to hunt it down in the GOP’s links to press releases of press releases: https://www.democracydocket.com/wp-content/uploads/2026/06/2026-06-29-Complaint.pdf
Section 1. Right to vote; qualifications of elector; qualifications of nonelector to vote for President and Vice President of United States. All citizens of the United States (not laboring under the disabilities named in this constitution) of the age of eighteen years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now or hereafter may be elected by the people, and upon all questions submitted to the electors at such election; provided, that no person who has been or may be convicted of treason or felony in any state or territory of the United States, unless restored to civil rights, and no person who has been adjudicated mentally incompetent, unless restored to legal capacity, shall be entitled to the privilege of an elector. There shall be no denial of the elective franchise at any election on account of sex. The legislature may provide by law the conditions under which a citizen of the United States who does not have the status of an elector in another state and who does not meet the residence requirements of this section may vote in this state for President and Vice President of the United States.
Yeah, omitting that last sentence while quoting the first part is certainly a choice. It’s the specific exemption to the rule in the first part of the section.
something, something, duty of candor to the court.
“When he was arrested on July 2, Prado told police ‘the situation was blown out of proportion,'” as was his penis after downing some Little League-funded Blue Chews
An amazing couple days for the US soccer team. Managed to squander any good will we had as underdogs, then got annihilated by a country the size of Maryland. Sad way for a very fun run to end.
It really is a shame our best athletes don’t play soccer. Imagine Myles Garrett at center back with Bijan Robinson, Jamarr Chase, and Derrick Henry on the attack.
The USA just needs to get used to the fact that other countries are better at some things than the USA is. And that list is growing under Dumbf.
We forget that the U.S. makes up 4.2% of the world population. Why we believe that we have some incarnate right to dominate all sports is ridiculous. Why we presume that Myles Garrett, Bijan Robinson or Jamarr Chase would make better soccer players than the actual best players in the world is ridiculous.
Lionel Messi 5’7″ 148 pounds
Kylien Mbappe 5’10” 165 pounds
Mo Saleh 5’9″ 157 pounds
Erling Haaland 6’5″ 200 pounds
Do we think that, though? Sure we hope to dominate in sports we care about. But all sports? I don’t see anyone saying we should be dominating cricket or table tennis
Speak for yourself. There is no reason Americans can’t get their wickets sticky on the international stage. Even if you gotta know what a crumpet is to understand cricket.
Sticky Wickets!!
Hi, long time soccer player here. What many people dont realize is that the USA is unique in making soccer a “pay to play” sport where its mostly people from affluent or above average means able to scale up in the hierarchy. Many pro soccer players have complained that this model needs to change if the USA wants to be a legitimate contender on the world stage. Trust me when i say i have seen many great soccer players go unnoticed because they simply dont have the means to play club or travel to tournaments. and this was going back 30 years ago when i was a kid. its only gotten worse. for a personal example, i was recruited to play on the U-16 USA developmental team, but had to pay for my way to training and do forth (including travel) (this was around 1998-99), something i could not afford living with a single mom. sometimes i wonder what could have been if i had the means
cope
Are you AV rated tho?
We could be better if our country prioritized soccer more than we do (not to say that it’s a bad thing) but there is very little chance any of those guys would ever be the among best soccer players in the world.
There was never any good will. We are and will remain the big bad US.
Soccer sucks on television and doesn’t easily accommodate commercial breaks. That’s why it has been and always will be marginal in the US. Follow the money.
That, and it’s a game for school children and European socialists with low testosterone.
There’s so much advertising money in soccer.
Longtime plaintiff attorney here, with many years of ID before that. The theory I guess is that a contingency fee hasn’t been incurred until there is a judgment. I always thought that was a pretty shaky argument TBH. This brings into focus the importance of timing and amount, and of giving the other side plenty of rope (e.g. all your evidence and a good 30-45 to evaluate and report on it before you drop the OJ) as early in the case as possible so that you can have them unreasonably reject a reasonable offer as early as possible.
Further to that, in a larger case, I would accompany the OJ with a detailed demand letter explaining all the reasons why the offer is reasonable and including references to specific documents, records etc. I would close with a magnanimous offer to leave the OJ open for an extra week or two beyond the deadline to make sure they have plenty of time to review. You are writing something to be read by the judge a year or so from now, not really for opposing counsel and the insurance company, who are likely to blow you off at that point regardless of what you give them.
It’s not a demand letter. It’s a Beattie letter.
Well, yes, but that’s not what you call it… until later. Too many times I have seen someone just drop a number seemingly out of nowhere with nothing like that to accompany it. Makes arguing agains the OJ much easier if you are defending against a fee application. It is like someone who makes a policy limit demand way too early and then expects to collect on an excess judgment. Give the other side lots of rope. You will be glad you did.
Both Lytle and Clark are, frankly, loathsome, and together they gut fee recovery in this state. Take Lytle: the district court set the lodestar at a rate ABOVE what the firm actually billed, on the sound logic that the firm could have charged more. Pickering reverses this, joined by Herndon and Cadish, none of whom, on the evidence, has ever drafted a fee petition in her life. The lesson she has taught the working practitioner is grotesque: bill at the very top of the market in the first instance, because restraint will be used against you. Punishing a lawyer for undercharging is an assault on the profession, and I say that AV-rated and admitted since the late 70s. Then Clark, where Stiglich en banc overrules Capriati and tells the contingency bar that its full fee is not ‘incurred’ post-offer but must be reduced to some judge’s guess at the ‘value of the work performed.’ Value of the work performed. As if the bench has the first idea what the work is worth. Parraguirre alone had the wit to dissent on stare decisis, which becomes sacred precisely when honoring it would cost lawyers nothing and abandoning it costs us a fortune. Not since Argentena, which crippled the charging lien and left practitioners who did the work unable to secure their fee, has this Court failed the working attorney so completely. It is one continuous war on attorney recovery, and I have appeared before these jurists enough to have predicted the error before it issued. ‘I don’t believe in principle, But O, I du in interest.’ – James Russell Lowell