By Patrick Dempsey
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October 27, 2026
This is the fifth post in Certum Group's seven-part series bringing our Trade Secret Litigation Playbook to the blog. It draws on Part V of the Playbook, Choosing Counsel and Structuring the Economics. Read or download the full Playbook here . The most common mistake I see claim holders make is also the most understandable one: they sign a law firm to a full contingency before they ever talk to a funder. A firm offering to take the whole case on contingency feels like a gift. You spend nothing, the firm carries the risk, and you share the upside only if you win. What could be wrong with that? When you look at cases side by side, quite a lot. A claim holder who engages a funder first and then hires counsel on a hybrid structure typically keeps substantially more of the recovery. To see why, start with the three ways to pay for a case. The three fee structures Hourly is the traditional model: you pay standard rates as the work is done, you own the outcome, and you bear 100% of the cost, win or lose. It fits deep-pocketed companies that want complete control, and smaller matters where alternative structures are hard to price. Full contingency puts the firm's fees entirely at risk, paid only from the recovery, usually at 33% to 40% of whatever comes in. It is attractive when you have limited capital, and the willingness of a good firm to take it is a genuine signal of merit. But it carries a real cost: that 30-to-40-percent-plus is meaningfully more than the combined economics of a hybrid or funded structure. Hybrid — shared risk — is the sweet spot for most matters between roughly $10 million and $250 million. The firm discounts its hourly rate, often steeply, in exchange for a smaller contingent premium on success. It preserves alignment while avoiding the full-contingency tax, and it becomes especially powerful when a funder pays the discounted fees, the claim holder pays nothing out of pocket, and counsel keeps meaningful upside. Why sequence changes the outcome Here is the part that sounds counterintuitive until you run the math. A 33-to-40-percent contingency leaves you with 60 to 67 cents of every recovery dollar. A hybrid structure — where counsel takes a smaller contingency, often 15 to 25 percent, layered on a discounted hourly fee that a funder pays — frequently leaves the claim holder with 50 to 65 percent after the funder's return, and sometimes more. The precise economics depend on the size and shape of the case, but the direction is robust: full contingency is rarely the cheapest path for a strong claim. Sequence matters because leverage is perishable. Once you sign a full-contingency engagement letter, the firm has effectively "bought" the case for its own investment committee, and switching firms afterward is expensive and awkward. With a funder in place and a hybrid structure available, you keep your optionality — you can hire the very best trial firm for your matter, rather than the best firm that happened to be willing to shoulder full risk. A funder's "no" is also valuable There is a quieter benefit, too. When a sophisticated institutional investor is willing to deploy non-recourse capital against your claim, that is one of the strongest external validations of case quality you can get, and counsel reads it that way. But even a decline is useful: it tells you where the weaknesses are — thin damages, a collectability problem, an identification gap — while you can still fix them, and before you have committed to a firm. Either way, you learn something you would rather know now than a year in. The sequence to consider In practice it looks like this. Retain trade secret counsel on a focused, limited-scope engagement to run an initial case assessment under privilege. While that is underway, open a confidential conversation with one or more funders, sharing the same materials. Use the funder's view — its willingness to fund, its read on damages, its suggested economics — to inform your choice of trial counsel. Then interview firms with that information in hand and propose a hybrid structure supported by the funder. Done well, the engagement letter, the funding agreement, and your preservation protocols can all be signed within the same week. None of this is a knock on contingency counsel, many of whom are excellent. It is simply a reminder that the cheapest-looking option at signing is often the most expensive one at resolution — and that a short conversation, before you sign anything, can be worth a large share of the recovery. Go deeper with the Playbook. This post covers one piece of a much larger picture. For the full framework — what the law requires, what a strong pre-filing case looks like, how damages experts value these matters, how counsel fee structures change your economics, and how litigation finance fits in — read Certum Group's Trade Secret Litigation Playbook , our field guide for business owners and the counsel who advise them: certumgroup.com/the-trade-secret-playbook . And if you are evaluating a live dispute — or simply want to pressure-test what a matter is worth and how it might be funded — get in touch. A confidential conversation with Certum is free and carries no obligation, whether or not you ultimately seek funding. Reach us at certumgroup.com/contact-us .