Archive for Legal Funding 101

New York University’s 2015 Fall Conference: Litigation Funding

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New York University’s Center on Civil Justice held a conference in late 2015 on the topic of litigation funding. The all day affair featured three different panels where the topic was examined from different viewpoints. The first panel featured representatives from different legal funding companies and they explained the basics of the litigation funding.

New York University is one of the premier universities in the entire world with campuses all over the globe. Their panel on litigation funding adds stature to the industry and the panelists also added an additional level because of where they are in the industry. Some of the panelists were representatives from the biggest litigation funding companies. Others were people from academia who have studied and written about the topic.

Litigation Funding has been the topic of the month and has been gaining traction in recent months as the industry continues to grow. It is such a huge topic and growing part of the legal and finance industries, people need to be educated on all sides of the industry. In the recent years, several hedge funds, venture capital firms have put money into companies that are in the legal funding sector. In addition, several high powered attorneys in the law have defected to some litigation funding companies. So the industry now has name recognition and stature in the legal, finance, and increasingly in the media. The New York Times, The Wall Street Journal, Financial Times, and The Economist have all covered the litigation funding industry. Those stories and others have helped increase the profile of the industry to the general public and interested parties.

FWO Chartered Accountants Law Firm Funding Webinar

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A webinar hosted by FWO Chartered Accountants based in Australia discussed the hot topic of law firm funding. The speaker on the webinar is Matt Schlyder, who is the Director of FWO Chartered Accountants. Law Firm Funding has been the topic “Du Jour” these past few months and the space has become white hot for investors and others seeking to get in the business. What many may not realize is that the industry was started in Australia and the United Kingdom and from there spread to the United States. The industry may still expand to places like Europe and Africa.

So a webinar informing interested parties on the law firm or litigation funding field is a welcomed inclusion in the educational material about the space. There are numerous white papers, and law review articles about the field and there will be more as it becomes more mainstream. As it stands now, even with all the material about law firm funding available to read, there is still some confusion about the space and its diversity gets lost.

Whenever law firms pursue litigation, they are undoubtedly burdened with huge costs. It is quite expensive to advertise for a case, gather the clients for the case, and then litigate the case in court. For really huge cases, a well-funded law firm would need to handle it otherwise small law firms are going to buried under their costs. That harms them and the clients they are representing. Plaintiff Attorneys are competitive and its hard to give up what they determined is a really good case, but the economics of the law firm are just as important as underlying argument of the case. That is why a lot of attorneys refer their “really good” cases to bigger firms because they were better equipped to handle the litigation.

The emergence of law firm funding has helped smaller firms keep their cases and pursue them to the finish line. Law Firm Funding companies provide the necessary resources to law firms.  In that scenario, they make a lot more money doing this instead of taking a smaller cut, giving away the case to a bigger firm, and losing an opportunity to burnish their reputation. Law Firm Funding can be used at any stage during litigation. Pre-Settlement, Post-Settlement, Judgment, and Verdict. It can even be used for costs during litigation, which is Case Cost Funding. The webinar breaks down all the benefits and costs of law firm funding in great detail.

Crowdfunding Continues To Expand Into Litigation Funding

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Crowdfunding has been all the rage since the JOBS ACT was passed in 2012. There are currently crowdfunding platforms for different industries including litigation funding. A California publication, WestSide Today, published a story about the latest platform developed for the industry, TrialFunder. The company is based in California and seeks to “democratize the economics of law” according to the COO of the company. Litigation Funding is an industry that has grown exponentially since its beginnings in the early 1990s. The problems people have bringing cases to trial against huge corporations has been exacerbated. Crowdfunding as an industry seems new, but is built on an old concept.

The current technology allows people from anywhere to invest through the platform if they are interested in the case. As long as the person investing is an “accredited investor”, they are eligible to invest their money into a case they believe in. While the companies engaged in crowdfunding litigation funding tout the social benefits of such a practice, they also tout the money that can be made for an investor in crowdfunding litigation funding. Since its arrival in the United States, litigation funding has primarily been a small operation with high-net worth individuals being the providers of funding. Recently, there have been inquiries and entrances from major institutions and companies looking to or getting into the space. In addition to TrialFunder, platforms like Lexshares and have emerged providing the same opportunities to investors.

The JOBS ACT through crowdfunding has given the high-net worth individual a chance to be able to participate and not get pushed out by the big institutions and companies. Most of the articles written or talked about concerning the JOBS ACT pertain to the possibilities crowdfunding can offer to the litigation funding industry. None of the crowdfunding platforms geared toward litigation funding have released information on their profitability yet. Crowdfunding for litigation funding is still in its early stages, but the opportunities it offers to both people who want their cases funded and investors looking to make a great return are endless. Title III in the JOBS ACT specifically deals with crowdfunding.

Photo Credit: Crowdfunding by Rocio Lara

Legal Funding Firms Merge, Bringing Two Countries Together

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According to a news article in the Australian, two litigation funding firms from the United States and Australia have decided to combine their efforts to expand their resources to compete in both places. Longford Capital based in Chicago, IL and JustKapital based in Sydney, Australia are joining forces to challenge the dominant litigation funding companies in their respective countries. Most analysts and observers of the space know it is gaining traction among investors and active participants. There seems to be new entrants in the space every day and news concerning litigation funding appears daily in different publications. Many have recognized the short term and long term benefits litigation funding will provide law firms. Different law reviews have published studies about the industry and a variety of legal commentators have spoken on the topic. As for the industry, some have suggested that it is ripe for mergers given the amount of companies currently in the space. Philip Kapp of JustKapital was quoted in the Australian saying:

“We think litigation financing will go the same way as private equity. Private Equity 20 years ago, a lot of funds started but a lot of them merged and bought each other out.”

Australia and the United States have been “hotbeds” for litigation funding. Australia is the birthplace of the industry. It came to U.S. in the early 1990s, but has kept growing ever since. Litigation Funding continues to expand to different countries across the world and the legal practitioners are adjusting to the industry. Critics, mainly big business entities, are trying to stop its expansion and deride it as an unnecessary evil. As debate over the industry continues, the merger of JustKapital and Longford Capital added a new major player to a crowded and growing industry.

Photo Credit: Image by Steve Conover 

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Structuring Attorney Fees vs Accelerating Legal Fees: A Plaintiff’s Attorney Should Understand the Pros and Cons of Each

bronze lady justice holding scales
Plaintiff’s attorneys fight hard in court, and fight even harder to earn a living. Though they can take home a rewarding 30% fee at the end of a case, this is only possible if a favorable settlement, judgement, or verdict has been rendered.

Plaintiff’s attorneys only take home what they win, and if they don’t win, they go home empty handed. The money that they do take home needs to fund current and future cases, keep the law firm afloat, and take care of other important daily expenses. In light of this precarious situation, it is essential that a plaintiff’s attorney understand all of the available options when it comes to handling fees.

Many attorneys take their earned money and reinvest it in their law firm’s operations, and this cycle continues until they retire. Some plaintiff’s attorneys use legal funding to take an advance on the fees they received from one case to springboard themselves into an even bigger case where the anticipated fees are much larger. There are also those attorneys who structure their fees so they get paid in installments instead of taking a lump sum.

All that should matter is whether or not the attorney gets paid, right? Well, it turns out that there are underlying benefits and drawbacks to each of the above methods of compensation.

Structuring Attorney Fees

An attorney who chooses to structure their fees essentially chooses to get an annuity. The largest benefit of structuring fees as an annuity is that the attorney will be allowed to pay a lower tax on the same amount of money. For example, receiving one million dollars all at once might place you in a much higher tax bracket for that year, increasing your taxes, but dividing it up as $125,000 over eight years may result in a lower payment.

One downside of the structured fee is that it occurs on a relatively rigid schedule. While knowing when you might expect your next payment does help with budget planning, this could become difficult in a time where access to capital is slim.

For example, in a situation where the next structured payment is a few months away but the attorney needs more capital to open a new case, pay staff, or perform other operational expenses, a structured fee might be problematic. In order to access the money in the structured fee, the attorney would have to break the agreement with the company that is structuring the fee, which would lead to penalties or further payments.

Another potential issue with structured settlements is that annuities are subject to inflation. This can be avoided if you were to choose an inflation adjusted annuity, but this type of deal is typically more expensive. Similarly, while current interest rates are at the lowest they have ever been, these are expected to rise soon.

If you are interested in structuring your attorney fees, insurance companies and specialized structured settlement companies offer such services.

Accelerating Your Post-Settlement Legal Fees

There are certain instances when a favorable outcome is reached, but due to court approvals, slow-paying defendants, or administrative delays, there is a lag in payment of the attorney’s fee. In such a scenario, an attorney can opt to accelerate a portion of their fee in the form of a post-settlement advance. In the legal finance space, such a transaction is referred to as post-settlement funding.

One potential downfall of post-settlement funding is that finance companies can only accelerate a portion of the attorney’s fee. The funding company will underwrite the advance for longer than the anticipated payment delay in case there are further unforeseen postponements. In addition, the funding company has to make a profit.

There is a lower risk of inflation with post-settlement funding because there is no scheduled payout. Knowing that the value of an accelerated fee will not change over time – and thus, the repayment rates will remain stable – is a huge benefit.

Many legal finance firms offer post-settlement funding in addition to other types of legal financing-such as pre-settlement funding, case-cost finance, and attorney lines of credit-but in different capacities. Some companies offer smaller advances with a short delay in payout. Others will only advance on larger fees or when there is a relatively long anticipated payment delay. If you think post-settlement funding makes sense for your practice, do your due diligence to find the company that best meets your specific needs.

Photo Credit: Golden Lady Justice, Bruges, Belgium by Emmanuel Huybrechts


Written by The Team at RD Legal Funding. Founded in 1998, RD Legal is one of the few companies that focuses exclusively on post-settlement financing. Their proprietary Fee Acceleration program provides contingency fee attorneys with advances that range from $20,000 to $20 million on virtually any type of case.

Legal Funding, Litigation Financing, and Lawsuit Lending: What’s The Difference?

money plantThere is no difference! According to Wikipedia, legal financing is “the mechanism or process through which litigants (and even law firms) can finance their litigation or other legal costs through a third party funding company.” The terms are interchangeable to the general public like lawyer and attorney.

Since the industry has been around since the 1990s, the way people refer to the industry has changed. So with time, the terms that describe the space have blended together.

The legal finance industry is broad and consists of many different facets, which are associated with the different stages of litigation. Different types of funding include pre and post-settlement funding, case-cost financing, appeal funding, verdict funding, and judgment funding. Although these different types of legal finance have their own definitions and unique properties, as far as the general public’s perception is concerned, they fall under the umbrella of terms such as litigation financing and lawsuit lending.

A Google search for “lawsuit financing” supports this point, as illustrated in the “Searches Related To” section at the bottom of the search results:

searches related to lawsuit financing

Furthermore, many companies advertise on the internet and traditional media outlets such as radio and television. When the general public is exposed to such advertising or thinks of the industry, they conceptualize what they hear or see, which for most people equates to “money for lawsuits.”

Most importantly, the general public may not realize that if they choose to accept lawsuit funding (assuming that it’s plaintiff pre-settlement funding), it is almost always NOT a loan, rather a non-recourse advance. This means that the plaintiff is not liable to repay the advance should the litigation result in an unfavorable outcome, so the funding company doesn’t get paid.

A loan entails monthly payments. There are no monthly payments associated with a lawsuit advance, which is only paid back if and when there is a settlement or judgment. Even though many legal finance companies use “loan” and “lending” to describe their financial products, such terminology is a misnomer.

The numerous phrases used to describe the legal funding industry can cause confusion due to the pervasiveness of the terminology. It is therefore important to know what kind of funding is appropriate for your specific situation before accepting an offer.

To learn more about the legal funding industry, please read our whitepaper entitled Legal Funding 101. To download the whitepaper, please visit

Photo Credit: Money by Aaron Patterson

Written by The Team at RD Legal Funding

A U.S. Lobby Against Litigation Funding In The Netherlands?

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This is a guest post courtesy of Sara Liesker, CEO of Dutch-based litigation funder Liesker Legal NV. For updates pertaining to litigation funding in The Netherlands, please follow Ms. Liesker on Twitter.

You’d be surprised how many people have never heard of The Netherlands. I’ve had the joy of meeting quite a lot of people from all over the world, many of whom believed either of the following to be true:

  • It’s a part of Germany (hence the word “Dutch” for the native language);
  • It’s a Scandinavian city;
  • It’s some sort of food or beverage.

Well, it’s actually one of the smallest countries in Europe, neighbour to both the UK and Germany, with its capital Amsterdam speaking to the imagination of many (with a well-deserved reputation I might add). A common joke (and historical fact!) is that the Dutch discovered the continent currently known as North America, chose to exchange it around the year 1660 AC for some tropical islands in the south (Curaçao, Suriname etc.) and thus did not exactly get the best part of the bargain. . . . How many of you know for instance that New York was formerly called New Amsterdam (and Wall Street is derived from the Dutch word “wal” which means “embankment”)!

Anyway, why would an insignificant dot on the global map be of any interest at all to the American Chamber of Commerce (COC)? More specifically: why would the COC conduct a fierce political lobby in The Netherlands, when there is currently only one company in this country active in the field of litigation funding (source)?

The answer is quite obvious. The Netherlands has a very friendly tax climate and has thus attracted many American companies to open up a holding company under Dutch law. Thus these companies have also made themselves subject to lawsuits being filed against them in The Netherlands with the applicability of Dutch law.

Dutch law knows a relatively new regime (known as WCAM) which makes mass claims easier for plaintiffs, with a major consumer-bonus that it’s based on an opt-out regime. On the downside, the WCAM grants companies being sued an early option to either participate in the mass claim settlement or not. The fact that WCAM is based on an opt-out regime makes it quite unattractive for litigation funders anyway because of the so called free-riders. The COC is nonetheless concerned about the WCAM.

The second eyesore for the COC is the upcoming possibility under Dutch law to set up actions for collective redress. This will take away the opt-out option for the defendant. As contingency fees are prohibited for lawyers under Dutch law, litigation funding could be important to provide access to justice for consumers. Improvement of the access to justice is one of the underlying motivations for this law. Fortunately a number of established Dutch law firms have advocated in favour of litigation funding in the consultation on the draft legislation.

One of the main arguments of the COC is the warning that The Netherlands should not embark on the path of “claim culture” that the USA currently knows. It is too far-fetched and actually a sophism (of the slippery slope) to use that argument. Dutch law and culture are based on the assumption that principal damages are for your own risk and account. Dutch people are known for their tolerance and conciseness, Dutch judges are known for their prudence when awarding damages. With a national market for litigation funding just beginning to develop, it would be best to let the market grow and filter on its own merits. The same has happened in Germany where litigation funding is unregulated and has been commonly used for almost two decades (source).

Under the pretext of protecting consumer interests (of Dutch residents nonetheless) it is quite transparent that it’s actually the interest of the multinationals that is being served by opposing to litigation funding in one of the smallest countries in the world on the other side of the Atlantic.

Although Dutch people showed some poor judgment in the 1600´s, we have grown infinitely wiser since. These days Dutch politicians can be trusted to draft their own laws.

Photo Credit: Bandera de los Países Bajos by Contando Estrelas

About Liesker Legal:

Liesker Legal NV is a privately owned litigation funder in The Netherlands, funded with private equity. They are the only Dutch-based funder, although international funders do finance some larger cases in The Netherlands. LL was founded in 2011 and currently has over 100 cases under investment mainly funding SME’s, with a claim total of over $140 million. For more information about the firm, please visit

Delaware Court Protects Litigation Funding Under Work Product Doctrine

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An international discovery dispute has led to the Delaware Court of Chancery to accept litigation funding as part of the litigation process. Despite the fact that none of the other issues in the dispute were resolved, Vice Chancellor Donald F. Parsons made the unprecedented decision to protect litigation funding.

It’s a happy ending for the litigation funding industry, but how did we get there?

The case had three main players, participating in two simultaneous lawsuits: the Carlyle Capital Corporation (CCC), of the Bailiwick of Guernsey; the Liquidators of the CCC (Liquidators), also of Guernsey; and Louis JKJ Reijtenbagh, of Delaware.

CCC had lost the majority of its capital in the financial crisis, and in March 2008 was placed into Liquidation. The Liquidators, responsible for wrapping up the affairs of CCC, determined that the only valuable assets that CCC had were any claims against the business. As such, in the first litigation – also referred to as the Guernsey litigation – the Liquidators are the plaintiffs, CCC the defendants.

On the other side of the sea, CCC are in a legal battle with Louis JKJ Reijtenbach (Defendants), former stakeholders of CCC. The Defendants allegedly violated certain releases held between CCC and himself by offering litigation financing to the Liquidators.

CCC claimed that, in order to pursue their case against the Defendants, they needed to see the litigation funding documents signed between the Liquidators and the Defendants. Here, the Liquidators intervened.

The Liquidators asserted that if they were to provide the requested documents as discovery materials, the Guernsey litigation would be impacted. They claimed that the information was privileged and was protected by attorney privilege (English law), or work product privilege (American law).

After determining that there was no precedent for this matter in English law, which mainly dominates in the Bailiwick of Guernsey, VC Pastor was set to answer the following question: are litigation funding documents protected by work product privilege?

Work product privilege is determined by applying the problem at hand to one of following questions:

  1. Was the product created because of litigation?
  2. Was the product created explicitly for litigation?

Delaware courts prefer to use the broader method of determining work product privilege, or the “because of” method. This method allows that a document may have been created for more than a single purpose – for example, in the case of the litigation funding documents in question, a document may serve both a business purpose and a litigation purpose.

As Pastor expressed in his opinion,

“In the litigation funding context, this analysis becomes blurry because the litigation itself arguably is part of the business. Potentially every document a third-party litigation funding company creates is created “because of litigation” in that the company is in the business of funding litigation.”

With this in mind, Pastor recognized that litigation funding is both a business transaction and a litigation transaction. In order to demonstrate to a litigation funder that a case is worth financing, the litigator must discuss certain aspects of the case with the funder.

“The negotiations between those two parties almost certainly would involve the ‘lawyers mental impressions, theories, and strategies about’ the case, which ‘were only prepared because of’ the litigation.”

By this train of thought, Pastor determined that litigation funding documents are protected by work product privilege, because they were prepared in preparation for or in anticipation of litigation, and that they also most likely contained discussions of the merits of the Guernsey case.

While this is good for the Liquidators, who do not have to jeopardize their ongoing litigation for the purpose of a different case, it’s even better news for the litigation finance industry.

Legal funding is not a loan or a hand out — it’s a financial transaction specifically tailored to the needs of attorneys, crafted by the legal funding firm after careful examination of an attorney’s case history and current case files. Every funding agreement is unique to its case and its attorney.

By applying work product protection to litigation funding, VC Pastor has acknowledged that litigation finance is a very real part of the litigation process for many attorneys. As Pastor himself noted,

“In those instances where a claim cannot proceed without third-party financing, one element of preparing a client’s case for trial will be securing the requisite funding, which probably will require discussions of a case’s merits in an effort to convince the third party to supply the needed funds. No persuasive reason has been advanced in this case why litigations should lose work product protection simply because they lack the financial means to press their claims on their own dime.”

I couldn’t have said it better.

Photo Credit: Image by Tracie Hall

Written by The Team at RD Legal Funding.

The Ups and Downs of Self Financing Your Law Practice

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Out of the many forms of traditional financing out there, self-financing sounds like the most ideal. It’s just you, yourself, and your money, independently making your law practice run like a dream.

If you were to self-finance your law practice, you’d be using your own capital. This means that you might have to convert some of your assets into a liquid form. For example, if you were the owner of a collection of antique porcelain dolls, you may want to sell them at a high price, and combine that high value with money from your savings accounts in order to finance your practice.

Unlike all of the other financing options, this type of investment only requires the input of a single individual (or multiple individuals, if multiple partners contribute their own capital to finance the law practice). It doesn’t get the bank involved, it doesn’t require any interest payment, and there’s no reason to deal with investors. And, of course, you will never have to pay late fees!

However, as with all types of financing, there are a few disadvantages.

The first – and potentially largest – downside is the lost opportunity cost. Because you’ve invested all of your personal capital in one project, it’s literally impossible for you to put it anywhere else.

This also means that you can’t invest it in securities and potentially gain interest — in fact, the capital you invested in your firm may actually lose value due to inflation.

Of course, just because all of your capital is in a single place does not mean all of your capital is in a bad place. You very well may see a high return on your capital; this all depends on how you invest it. The same principle would apply if you were investing your own money or if you were investing a loan.

Investing your own capital in your law practice has its risks and it has its rewards. Certainly, this practice is not for everyone; and as with all types of funding for law firms, self-financing can be used in addition to other forms of law firm funding.

To learn more about financing options for your law practice, take a look at Legal Funding 101, our definitive guide to law firm funding practices for attorneys.

Photo Credit: Image by Rental Realities

Shayna Keyles has been keeping the world informed on the latest legal finance with RD Legal Funding, LLC since 2012. She offers writing and content marketing tips at her website,, and tweets at

3 Myths About Legal Funding

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If you were to stop a random pedestrian and ask them about legal funding, you likely wouldn’t find out much relevant information.

This is because legal funding is such a new industry, and many people are unsure of what it actually is, or have a somewhat distorted idea.

Listed below are the three most common myths about legal funding, and rebuttals to each of the myths.

Next time you’re stopped on the street and asked about legal funding (I’m sure it happens to you all the time!), you’ll be able to give an accurate and informed answer!

Myth #1: Legal funding exploits plaintiffs

This is perhaps the biggest myth about legal funding, and it’s absolutely the most inaccurate statement.

Legal funding does not exploit plaintiffs. It empowers them.

Many plaintiffs who enter litigation have taken a very calculated risk. They know that litigation is expensive, and they know that lawsuits can take a long time to reach completion. Nonetheless, plaintiffs are willing to put time on the line to fight for their rights.

During this time period, plaintiffs may accumulate fees and debts related to their litigation. For example, a personal injury plaintiff may see a mounting pile of hospital bills; a medical malpractice plaintiff may receive endless phone calls from insurance companies. On top of these associated costs, plaintiffs are still acutely aware of their daily expenses and future legal fees.

Legal funding allows these plaintiffs immediate relief in the form of a cash advance.

With this money, a portion of the future expected settlement (the industry terminology for this specific type of legal finance is pre-settlement funding), plaintiffs can live a less stressful life. Moreover, they will not be burdened by the pressure of loan repayment.

This last point brings us to our next myth…

Myth #2: Legal funding is a loan

Legal funding may possess some loan-like features, but that does not make it a loan.

For example, through legal funding, plaintiffs and attorneys can access large sums of capital that can be used immediately to better their daily lives. A loan can provide a similar benefit.
However, much unlike a loan, the money that legal funding companies grant to plaintiffs and attorneys comes directly from future fee or settlement proceeds.

To put things more simply:

An attorney who receives legal funding will receive a cash advance on a portion of their future fee.

A plaintiff who receives legal funding will receive a cash advance on a portion of their future award.

Plaintiffs and attorneys who receive legal funding are receiving cash advances on their own future earnings.

In other words, a portion of the settlement, or attorney’s fee, is purchased by the legal funding company and paid in advance to the recipient of legal funding.

Because legal funding companies accept a greater risk than traditional lenders do, their fees are generally higher compared to traditional lenders. Many legal funding companies offer non-recourse advances; meaning that if a settlement does not pay out for some unforeseen reason, the funding company will accept full responsibility and repayment is unnecessary.

So, as you can see, though there are some similarities between loans and legal funding, there are also a great many differences.

This leaves us with one last myth…

Myth #3: Legal funding is actually…kind of illegal

Many critics to legal funding believe that the industry promotes champerty and maintenance. These (literally) medieval legal concepts make it illegal for non-lawyer parties to be in the courtroom or otherwise influence litigation. By this principle, the argument goes, legal funding should be considered illegal.

Of course, if courtrooms were to fully obey the rules of champerty and maintenance, many other parties would be forbidden from influencing litigation.

For example, insurance companies often cover the costs of certain defense cases; this would no longer be permitted. Friends and family often chip in to help pay for counsel; this would also be forbidden. Only the wealthiest potential litigants would be able to use the legal system, which would completely go against this country’s principles.

To avoid illegal and unethical actions in the land of legal funding, many states have passed independent measures to regulate the industry. Moreover, many legal funding firms have united to create ALFA, the American Legal Funding Association. The goal of this organization is to set an industry standard, and guarantee fair and ethical practices across the board.

Now you know the truth about legal funding!

But there’s always more to learn.

Check out our white paper on legal funding to get the full scoop on the industry – different types of funding, when to use them, and how they might be right for you.

If you thought this post was helpful or have any other myths you want to talk about, leave a message in the comments below!

Photo Credit: Themis by Rae Allen

Shayna Keyles has been keeping the world informed on the latest in legal finance with RD Legal Funding, LLC since 2012. She offers writing and content marketing tips at her website,, and tweets at