Can You Negotiate a Contingency Fee?
Often, yes — the percentage is a contract term, not a fixed price. But the headline rate is rarely the term worth negotiating hardest. Whether the fee is calculated before or after case costs are deducted usually moves more money, and is far less often questioned.
Negotiate the Structure, Not Just the Number
Direct Answer: Most people try to negotiate the percentage. The term that more reliably changes your net recovery is whether that percentage is applied to the gross settlement or to the settlement after case costs come out. Both are lawful and both are common, so it is a genuine choice — and it is usually easier to move than the rate.
| Term | How negotiable | Why it matters |
|---|---|---|
| Calculation order | Often | Frequently worth more than a percentage point on the same settlement |
| Costs on a loss | Often | Decides whether a failed case leaves you owing money |
| Tier trigger | Sometimes | “On filing” and “on trial” are very different points |
| Headline percentage | Sometimes | Easier on strong, high-value, low-investment claims |
| Expense authority | Usually | Consent thresholds for large expenditure |
| Statutory maximum | Not upward | A cap is a ceiling; a lower fee remains negotiable |
When You Have More Leverage
- Liability is clear and largely admitted.
- The claim is high value relative to the work required.
- There is adequate insurance, so recovery is not in doubt.
- The case is unlikely to need extensive expert evidence.
- You are consulting more than one firm and say so politely.
And less leverage where liability is contested, the claim needs heavy investment, the defendant is uninsured or hard to trace, or limitation is close.
Where the Cap Removes the Choice
Some states fix a maximum by statute or court rule, particularly in medical malpractice. California limits the fee to 25% of the recovery if the case settles before a civil complaint or arbitration demand is filed and 33% after (B&P § 6146). New York applies a descending sliding scale in malpractice claims (Judiciary Law § 474-a). Check the position in your state.
How to Raise It
- Ask how the fee is calculated — gross or net of costs — before discussing rate.
- Ask what would need to be true for a different structure to work for them. It invites an explanation rather than a refusal.
- Ask about the tier triggers and whether they can be tied to later stages.
- Ask what happens to advanced costs if the case is lost.
- Get whatever is agreed into the written agreement before signing.
A firm that explains its reasoning is telling you something useful even if it will not move. A firm that will not discuss the calculation order at all is telling you something too.
Frequently Asked Questions
Frequently Asked Questions
Can you negotiate a contingency fee?
What is more negotiable than the percentage?
Will asking to negotiate offend the attorney?
Are there cases where the fee cannot be negotiated?
Should I get more than one quote?
What if the fee turns out to be unreasonable?
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Where this applies: Contingency fee rules are set state by state. Check your own state's rules before acting.
Sources for this page
Every rule stated above is based on the primary sources below. Each link goes to the legislation, court rule or regulator itself so you can check it. Last verified 5 August 2026.
- ABA Model Rule 1.5 (Fees)
Model, not law. Each state adopts its own version. Rule 1.5(d) bars contingency fees in most domestic relations matters and in criminal defence.
- Cornell LII — contingency fee
- Cal. Bus. & Prof. Code § 6146 (medical malpractice attorney fees) · in force from 1 January 2023
As amended by AB 35 (Stats. 2022 ch. 17 § 2): 25% if settled before a complaint or arbitration demand is filed, 33% after. The former 40/33⅓/25/15 sliding scale no longer applies.
- N.Y. Judiciary Law § 474-a (medical malpractice fee schedule)
Sliding scale: 30% of the first $250,000, descending to 10% above $1,250,000.
Who wrote and checked this page
- Written and published by
- Edward & Amaury Solicitors (Edward & Amaury Ltd, company no. 12195443), regulated by the Solicitors Regulation Authority under no. 800525.
- Legal review
- This page has not yet been through independent legal review. It is written from the primary sources listed below, which you can check directly.
- Review dates
- Last reviewed 5 August 2026. Next review due 5 February 2027.
Fee rules change. California’s medical malpractice fee limits changed on 1 January 2023, and the QOCS rules in England and Wales changed on 6 April 2023. If you spot something out of date, tell us — we publish corrections.