Over the three decades that I’ve been in and around the legal profession, I’ve noticed an interesting evolution in Biglaw litigation. Large law firms that have traditionally focused on defending their corporate clients in lawsuits have become increasingly open to representing plaintiffs.
“For many years, large, prestigious law firms have defended their corporate clients from claims brought by plaintiffs, typically represented by small, upstart law firms on a contingency basis,” wrote William P. Scarbrough, who worked on the business side of law firms for many years, for Thomson Reuters. “Big-firm defense lawyers often looked down on plaintiff-side counsel for their brash style, swashbuckling tactics, and limited resources. For big-firm lawyers, bringing such cases themselves was certainly beyond the pale.”
But that was already changing in 2020, as Scarbrough noted—and the trend has only gained momentum since then. In 2022, two years after announcing a plan to expand its plaintiff-side docket, Kirkland & Ellis reported more than $2 billion in recoveries for clients it represented in affirmative litigation.
And legal finance is helping in this shift.
“Am Law 100 firms are increasingly realizing that they don’t want to lose business representing their traditional clients as plaintiffs,” said Evan Meyerson, a managing director at Burford Capital, where he leads the U.S. Commercial investment team. “These firms don’t want to leave money on the table—and so they’re working with legal finance firms to develop the more creative fee structures that these matters often require.”
Law Firms Are Following Their Clients Into Affirmative Litigation
What’s behind the evolution? One of the biggest factors, which I covered last year, is that major corporations are increasingly willing to bring litigation in appropriate cases. In fact, a 2024 report commissioned by Burford found that more than half of surveyed companies had already implemented an affirmative recovery program or were in the process of developing one.
And as they so often do, Biglaw firms have evolved alongside their corporate clients.
“Our litigation practice focuses on clients’ most important, strategically significant matters—and those matters are a mix of plaintiff- and defense-side work,” said Craig C. Martin, Chairman, Americas of Willkie Farr & Gallagher, where he’s a litigation partner in the Chicago office. He estimated that around a third of his practice today involves representing plaintiffs.
“Clients are more willing to be plaintiffs—and to turn to our firm when they want to be plaintiffs,” another litigation partner at an Am Law 100 firm told me. When this partner started practicing more than 30 years ago, 10 percent or less of his docket involved plaintiff-side work; currently, around 40 percent of his cases involve a plaintiff-side representation (counting cases in which his client is asserting a counterclaim).
A related factor is that certain practice areas have developed within Biglaw that revolve around representing plaintiffs—often existing clients of these firms who find themselves needing to sue instead of being sued.
For Robert (Bob) Weigel, a longtime litigation partner at Gibson Dunn & Crutcher, around 75 percent of his cases are for plaintiffs. He’s the founder and co-chair of the firm’s judgment and arbitral award enforcement practice. It’s work that is, as Weigel put it, “plaintiffs’ work by definition”—and work that has increased significantly during his time at the firm.
Representing Plaintiffs Can Be Creative—And Fun
“Plaintiff-side work has added a dimension to big-firm practice that wasn’t there before,” as Weigel put it. And it brings with it unique rewards, beyond the financial.
“There’s a certain amount of creativity involved in formulating your theory of the case as the plaintiff,” a litigation co-chair at an Am Law 100 firm told me. “Crafting the claims and gathering the facts can be interesting, even fascinating, work.”
When a law firm represents a client on the defense side, the lawyers often take what might be called a “kitchen sink” approach, offering many different arguments—often pleaded in the alternative—for why their client isn’t liable. Representing a company as a plaintiff requires a different approach and skill set, calling upon litigators to weave together a unified, cohesive story for why their client should prevail.
“I love plaintiffs’ cases,” Craig Martin of Willkie told me. “I love putting together the strategy for the case. You’re focused: you have a core theory, you execute on the theory, and you try the case. It’s really fun.”
(“Not to say that defending isn’t fun,” he added. “It’s certainly fun when you win.”)
How Legal Finance Can Help Bridge The Gap
Full-service, defense-oriented Biglaw firms can be less enthusiastic about the contingency-fee arrangements that are commonly employed in plaintiff-side matters, which require putting firm resources at risk. If a firm devotes thousands or even tens of thousands of lawyer hours to a contingency-fee matter that ultimately doesn’t pan out, that represents a huge financial hit to the firm—and to its profits per partner, which firms strive to maintain at high levels.
And even successful contingency-fee matters can sometimes take years to pay out. This doesn’t fit comfortably into the financial model of most Biglaw firms, which distribute profits to partners fairly promptly.
In such situations, legal finance can play an important role.
“Even if a defense-oriented, billable-hour-oriented firm decides to start handling plaintiff-side matters, they’re not going to transform overnight into a firm that’s comfortable with contingency-fee arrangements,” said Meyerson of Burford, who previously practiced at Sullivan & Cromwell and Paul Weiss. “So that creates an outsized role for smart, sophisticated capital providers, who can help develop innovative financial structures to support the firm in its growth trajectory.”
Vanessa Biondo, a former litigation partner at Mayer Brown and current vice president at Burford Capital, was first exposed to litigation funding in 2013. She worked on a matter that needed funding—“a David versus Goliath case involving a business that had a great claim and wanted to hire Mayer Brown, but couldn’t afford the firm’s standard hourly rates.”
Biondo secured funding for the client for that case, which allowed it to move forward. And during the rest of her time in practice, at both Mayer Brown and boutiques, she worked on other cases in which litigation finance played a valuable role.
“Litigation funders can help litigators take on plaintiff-side cases at firms where their partners might be reluctant to take cases on full contingency,” Biondo explained. “With funding, a litigator can take on a plaintiff-side case even if the partnership doesn’t want to fund riskier cases.”
“Another reason law firms work with legal finance providers is that we bring a clear, independent view on risk and return,” said Meyerson. “We evaluate these opportunities every day across a wide range of complex disputes. Experience matters. Our team includes attorneys from leading law firms and in-house roles, and we draw on more than 16 years of proprietary data. We help firms decide where to deploy their time and capital, especially when the stakes are high.”
Bob Weigel of Gibson Dunn agreed that funders are rigorous in their vetting of matters, putting a tremendous amount of diligence into deciding which cases to back. So if a funder decides to invest in a matter, “that suggests to the client and to the law firm that this is a good case—and we don’t bring cases that we don’t think are good cases.”
“As the funding industry has grown, it has allowed parties who have good claims but lack the financial wherewithal to bring those claims,” he continued. “I had one client that turned to funding because they couldn’t bring the case without it: they were bankrupt. These claims are legitimate claims—and some of them are very big claims.”
“The existence of funding has enabled smaller companies to hire firms like ours, which are at the top of the field but expensive, to represent them in pursuing these claims,” Weigel concluded. “Litigation finance has been a real game changer.”
At the same time, it’s not only resource-constrained companies turning to funding. Well-capitalized businesses use litigation finance to manage risk, unlock capital, and optimize cash flow associated with pursuing large claims.
“We work with companies of all sizes,” said Meyerson. “Today, it is not just a question of resource constraints, but one of opportunity cost. A Fortune 500 company that could afford to pay hourly for legal representation can now pursue valuable affirmative claims while preserving resources for its core business. And it can now use its preferred law firm to do so, as more top global firms take on plaintiff-side engagements for their institutional clients rather than losing that business to other firms. Underpinning all this evolved thinking is legal finance, which is increasingly becoming a corporate finance solution for legal claims.”
Interested in learning more about this topic? Please consider joining me and my friends at Burford in New York City on May 6 for our upcoming Burford Briefing breakfast panel, “Biglaw’s Embrace of Contingency Litigation.” To learn more and register your interest, please visit the event page.
This post is sponsored by
Burford Capital helps companies and law firms unlock the value of their legal assets. With a portfolio of over $7 billion and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost or risk or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com.
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