How does a Litigation Funder know your claim is viable?

Like some of your favorite crime shows, where you follow an intelligent and astute investigator who always manages to piece the puzzle together when no one else can, you can think similarly of a litigation funder.?

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The role of the litigation funder starts with investigating the claim, the claimant, the legal counsel, and even the respondent. And this is a good thing. Because after a funder does their thorough due diligence and decides to grant the funding, the claimant can be fairly sure that they are in for a successful recovery. No funder will offer litigation funding if they believe the claim won't be successful.?

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So how do funders decide whether a lawsuit is a viable funding opportunity for them? This post looks at the six vital criteria a funder will evaluate for feasibility of litigation funding.?

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1. The Merits of the Claim

It all comes down to reviewing the information. Funders will trawl through all the claim documentation and evidentiary support. There will also be expected defenses and counterclaims to consider. This information will help with the prediction of the lawsuit and whether it will be successful or not. Cases can often be complex, and the scope of the review done by the funder will depend on how organised and extensive the materials are, the case type, the status of the action, and how well the case has been communicated.?

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Well-organised case documents and the lawyer's strategy should include anticipated defenses too. Knowing the claim's weaker points will help a funder understand the risk involved and is just as important as understanding the case's strengths. This way, a funder will be able to understand the merits of the claim and make a safe decision for the funding proposal.?

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2. Understanding the Claimant

Knowing who the claimant is and understanding their previous history is essential when considering a lawsuit funding proposal. The funder will look at the claimant, what has motivated them to look for funding, whether the claimant has available resources to bring the claim, if the claimant is simply trying to shift the risk or if they are trying to avoid cash flow issues. Is there a prior litigation history with the claimant? If so, the funder must understand the claimant's mindset towards litigation.?

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Sometimes a funder will receive some backlash from the claimant and their counsel regarding the in-depth digging into the claimant's history. They need to know that the reason goes beyond just understanding the case's merits, but whether the claimant is perhaps emotional about the issue. The reason for wanting to see this information is that the funder would prefer decisions to be rationally made when considering a settlement.?

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3. The Claimant's Legal Team

The experience and stature of the claimant's legal representative will also be screened by the funder, especially if they are not familiar with the litigation lawyers. If this is the case, the funder will investigate the counsel's history, their experience with similar types of legal claims, and their track record with lawsuits. The engagement agreement between the law firm and claimant will also need a once-over. This is so that the funder can understand the economics of the arrangement and assess whether the claimant and legal counsel have aligned interests.

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4. Reviewing the Budget?

Litigation funding offers a fixed obligation of capital to pay the fees and expenses associated with the lawsuit. The funder will keep a close eye on the budget and constantly keep it in review. One of the things they will check, for example, is the timing of the capital outlays. Still, it will be up to the claimant and their counsel to be accountable for any overruns on the budget unless there is an extension commitment for the capital.??

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If a funder is not self-financed and instead looks to outside investment, they will be a little more strict with the budget than a self-financed funder might be. This is because they are looking after their investor's capital.?

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5. Damages-to-Budget Ratio?

The funder will need the potential award to be enough to match the investment risk made and cover the running costs of the agreement, which includes the case investigations and all transactional operations. All funders want to ensure that they can recover the opportunity costs involved and have made an economically sound investment through funding the claimant.??

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The funder will want to weigh up a realistic recovery from the lawsuit versus the amount of funding needed at a ratio of 10:1.?According to lexology.com "many funders are looking for a 10:1 damages-to-budget ratio, meaning that the funder will want to see at least $10 million of provable damages for every $1 million of investment." But of course, there are other things to consider, like the probability of winning the case and even the timing of the lawsuit when assessed against the funding needs.

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6. The Chance of Recovery?

Last but not least, funders will assess the respondent and their ability to pay the recovery if a successful verdict is granted. Litigation is a two-party matter, after all, and whether the award can convert into recovery will depend on the respondent. You don't want to be in the scenario where the lawsuit is funded, the case won, a positive judgment or award is given, but the claimant doesn't receive the funds because the respondent is insolvent or, for some reason, judgment-proof.?

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This is why funders need to do their due diligence on the respondent and find out whether they or the business is financially stable. You don't want to be in a situation where the ruling can force respondents into insolvency, which will make a recovery impossible. Or in the scenario where the collection process is challenging and frustrating and a reduced amount is granted.?

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These six standards need to be met for a viable case for litigation financing. Not all candidates are suitable for financing, and that is why the funder does a lot of work to understand the issue and all it involves before offering litigation finance.?

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If you want to stay up-to-date with what is going on with non-recourse litigation funding, Wild Dog serves as a trusted advisor to attorneys and their clients, who are exploring litigation financing. So follow our Linkedin Page for the latest updates on https://www.dhirubhai.net/company/wild-dog-mu or visit our website https://wilddog.mu for more.