Tag Archive for litigation funding

Cyber Security, FACTA, & Litigation Funding

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Cyber Security and identity theft are arguably the biggest issues in the world today. Someone’s entire life can be destroyed if their identity is stolen. A person who has their identity stolen can suffer immediate and future ramifications if the matter isn’t handled in a timely manner. It is why we have antivirus software to protect our devices and also why we only shop on websites where the sensitive information we input is secure. As information moved into the digital world, this new kind of security became a necessity. New industries have been created to try to prevent identity theft and catch the individuals engaged in that type of criminal activity. As the internet became a bigger part of how the world works, best practices have been established for consumers and businesses engaged in commerce online.

Some of these steps for consumers include browsing and shopping on safe and secure websites. For businesses, it is protecting their customers’ information when transactions take place. However, recent news stories reported the women’s clothing company Donna Karan fighting its customers over alleged violations of the Fair and Accurate Credit Transactions Act. (FACTA) FACTA is an act that contains provisions to assist in the reduction of identity theft. The act enables consumers to take preventative measures to guard their identity. Recently, Law 360 reported Donna Karan is appealing to the Supreme Court about a lawsuit filed by their customers over their alleged lack of diligence allowing full credit card numbers to be displayed on receipts. That mistake can cause severe damage to someone in the wrong hands. The other issue in this matter regarding FACTA could be the culpability of the business and what it may mean for them in terms of lawsuits.

“Consumers have the ability to file litigation against companies that are irresponsible with their personal information” says Roni Dersovitz, Founder of RD Legal Funding. “Litigation Funding allows plaintiffs to pursue lawsuits against well-capitalized defendants that have the ability to overwhelm them in a court of law.”

Huge retailers are currently or have been in litigation for this very issue. Target, Walmart, and others have been sued for reckless endangering their customers’ personal financial information. As the world continues to become digitized, companies may be more susceptible to the possibility of lawsuits from their customers should they not properly protect their sensitive financial information.

New York University’s 2015 Fall Conference: Litigation Funding

legal funding related keywords

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 Mighty.com 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 

Photo Credit: Image by Flag Program

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 http://ssrn.com/abstract=2387027.

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 http://lieskerlegal.nl.

Delaware Court Protects Litigation Funding Under Work Product Doctrine

small court of law
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.

WECLAIM: Mass Litigation at Hand


In 2014, the French mass litigation landscape changed radically with the “Hamon Law,” which was passed by the French Parliament on March 17th, 2014. Prior to that, the European Commission published a non-binding recommendation (http://europa.eu/rapid/press-release_MEMO-13-531_en.htm) on June 11th, 2013, indicating that all EU Member States should, within two years, adopt mechanisms for “collective redress” which allow multiple claimants to seek damages or injunctive relief on a collective basis or through a representative claimant.

The bill granted 16 government-approved consumer associations with the monopoly to introduce legal action on behalf of an unlimited number of consumers.

Unfortunately, this bill hasn’t established an efficient system for the following reasons:

  • A narrow scope (issues related to health and the environment are excluded)
  • Unlike class actions in the US which provide for an “opt-out” procedure, class actions in France are based only on an “opt-in” system
  • The government-approved consumer associations have limited human, financial, and technology resources
  • A complex four step procedure

The Lift of the Client Solicitation Ban for Attorneys: An Opportunity

Ironically, article 13 of the Hammon Law also transposed a specific provision from another EU Directive (the Services Directive or Directive Bolkenstein), published on December 12th, 2006, which provides that lawyers should be allowed to advertise. The lift of the solicitation ban was an opportunity that we decided to seize, in order to transform the inefficient opt-in regime to an efficient one.

Weclaim was born on the idea that despite the lack of a proper opt-out regime, we could still build a market alternative to run class actions effectively. We created a web platform that combines technology, straightforward and intuitive business services, cloud solutions, litigation financing, automated claim procedures, and the latest in IT services that enables victims to join a lawsuit launched by attorneys.

Litigation Funding is Key to Success

Why is litigation finance key to the success of Weclaim? Since French attorneys (and most Europeans) are prohibited from running a case on a contingency basis, legal fees would have been a strong deterrent to claimants.

How Does it Work?

Any lawyers across Europe or the world can now submit a class action proposal by visiting https://www.weclaim.com. We run due diligence of the proposed class action and fund it if the case is viable (strong legal merits and defendant creditworthiness). Once a claim is launched and funded, claimants have the opportunity to join online.

Weclaim’s Remuneration

Weclaim is working on a no win, no fee basis. If the claimant does not get paid, we don’t get paid either. Assuming a favorable outcome, we take a percentage of the damages awarded. We have the ambition to make justice as swift and efficient as possible across the globe.

The above is a guest post courtesy of Frédéric Pelouze, founder of Weclaim. Mr. Pelouze also co-founded Alter Litigation, the first French legal funding company.

Two Truths and a Lie, Legal Funding Edition

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For today’s blog post, I want to try something a little bit different. We’re going to play a game.

You might be familiar with this one – it’s called “Two Truths and a Lie”, commonly played as an ice-breaker event. You can think of this as your ice-breaker introduction to legal funding, if you’re still pretty unfamiliar with the concept.

Legal funding is such a new industry that it can be difficult to separate fact from fiction. Not only is the industry shy of celebrating it’s 20th birthday in the United States, but it’s already developed multiple sub-industries. Figuring out the the precise nature of legal funding as a whole – not to mention the details of each sub-category of legal finance – can be quite a tedious task.

It shouldn’t be too hard, so go on, give it a try! Which ones are true, and which one is false?

Legal Funding Isn’t For Everyone

“Legal Funding,” “Litigation Financing,” and “Lawsuit Loans” Are The Same

Traditional Loans Are More Intensive Than Legal Funding

Here’s a little humorous intermission to give you time to think it over, before I let you see the answers.

Alright. That should have been plenty of time. Are you ready to test your answers against mine?

Here goes.

Legal Funding Isn’t For Everyone. TRUE!

As much as I wish this one were false, it isn’t.

Legal funding is NOT for everyone.

If you’re a plaintiff who is seeking an attorney to try a case, legal funding likely isn’t for you. A legal finance firm will not fund a case before it has been accepted by an attorney or by the courts.

If you’re a defense attorney coming from a well-funded defense firm, legal funding is not for you. You already have the funds to litigate your case successfully, and have no need for extra assistance. You’d be wasting both your time and the time of the funding company if you applied for financing.

If you’re a plaintiff’s attorney seeking fee acceleration on a settlement that will pay out within a few days time, you likely won’t receive legal funding. You would be setting yourself for unnecessary repayments and paperwork if you applied for legal funding in this situation.

While there are a few other instances where you won’t qualify for legal funding, there are plenty of other cases where you will. From pre-settlement and post-settlement funding, to appeals and judgment funding, there are legal funding options for almost every situation.

“Legal Funding,” “Litigation Financing”, and “Lawsuit Loans” Are All The Same. FALSE!

Legal Funding and Litigation Financing can be used interchangeably, but Lawsuit Loans are a completely different thing.

The key word here is “loans”.

Legal funding, also known as litigation finance, is a process by which a legal funding firm purchases legal receivables from a plaintiff or an attorney. Such receivables include an attorney fee attached to a settlement (post-settlement funding) or anticipated proceeds from ongoing litigation (pre-settlement funding) — and then advances that purchase amount to the client. Then, at a later date, the client will repay this advance, along with a pre-determined amount of discount, from proceeds of the settlement or judgement.

In some cases, legal funding is non-recourse. This can occur when a settlement or fee does not get paid for unforeseen, non-preventable reasons. When this happens, the client does not return the advance to the funding company.

This is NOT how a loan works.

Loans are given out regardless of whether or not a future sum in the form of a settlement, a fee, or otherwise will be paid to the client. At an agreed upon future date, the client is expected to repay the loan along with a predetermined amount of interest. The cost to the client is the entire loan amount, along with the interest amount. The loan is considered a cost, because there is no guarantee that the client will have future earnings equal to or greater than the loan amount.

So the next time you hear someone saying that “legal funding” is the same thing as a “lawsuit loan”, you can put them in their place.

Traditional Loans Are More Intensive Than Legal Funding. TRUE!

While traditional loans may be less expensive than legal funding, they’re also more intensive for attorneys.

It’s true, for example, that a personal loan might have an interest rate between 6-8%. And it’s true that legal funding firms generally have higher rates, which vary depending on the type of funding being offered.

However, higher premiums aside, legal funding firms make life much easier for attorneys who often don’t qualify for traditional funding like bank lines of credit and personal loans. That’s because loan companies often want something that most plaintiff’s attorneys don’t have: physical collateral. The majority of the time, plaintiffs’ attorneys who apply for loans will be rejected because of insufficient collateral.

Contingency fee attorneys more often than not rent their office space and other accommodations that they need to run a successful practice, leaving them without physical collateral. Their most valuable assets are not physical objects, but thoughts and documents: their case portfolio and their law practice. Banks don’t accept these as collateral.

Legal funding firms, on the other hand, do.

Legal funding companies were developed specifically to take legal assets as collateral to help attorneys struggling with cash flow issues get back on their feet and reinvest in their own practices. The industry expanded to helping the clients of these attorneys, as well, and today offers multiple types of customized funding options to contingency fee attorneys and plaintiffs.

Did you win the game? Were you able to guess which facts were indeed facts, and which was a fib? Do you have any other funding fictions that you’d like to see turned upside down? Do you know any other fun legal cartoons I can read?

Let me know by leaving a comment!

Photo Credit: image by smlp.co.uk

Shayna Keyles has been keeping the world informed on the latest in law and litigation financing with RD Legal Funding, LLC since 2012. She offers writing and content marketing tips at her website, www.contentliaison.com, and tweets at @SKLiaison.