Lawyers are already spinning enough plates. Funding and insurance should not be another one.

At TheJudge, we have considerable sympathy for the modern litigator. On any given matter, you may be assessing and advising on the merits, managing the client and the other side, controlling the budget and timetable, and coordinating disclosure and counsel. At the same time, general counsel increasingly want to understand what a case will cost and what it might return before fully committing to it.

That is already a lot of plates to keep in the air. When questions of funding or insurance land on top of everything else, it is understandable that they can be pushed towards the bottom of the list or addressed in a rush shortly before a deadline. By that point, the available options may already have narrowed.

Our view is simple. Working out how a case might be financed or de-risked should not be another plate for the legal team to spin. Done well, it should reduce the pressure on both the legal team and the client. But it works best when considered early, while the full range of options remains available.

The value of an early conversation

This is where an initial conversation with TheJudge can be particularly useful. It can be easy to assume that speaking to a broker means committing to a formal process, or that the conversation is only worthwhile once a case has been fully developed and a decision is imminent. In our experience, the opposite is often true.

The most valuable conversations are frequently the short, early ones, when nothing has been decided and the full range of options remains available.

Fifteen minutes near the beginning of a matter is often enough for us to give a lawyer a realistic initial view of what may be possible. We can discuss what appears feasible, what appears unlikely, what information insurers or funders will require and what might need to change for an option to become viable.

Our team can also often provide an initial indication of likely premium levels or the return a funder might require, either during that conversation or shortly afterwards. This can help the legal team and client decide whether an option is worth pursuing before spending time preparing a detailed submission.

The client’s identity does not usually need to be disclosed at this stage. The discussion can take place on a no-names basis, using a general description of the dispute, the likely budget, the estimated value of the claim and the relevant jurisdiction.

That initial assessment can save a considerable amount of time. It helps prevent teams from building a strategy around an option that was never likely to work, while reducing the risk that a viable alternative is overlooked.

There is no single solution for every case

Early engagement also matters because there is more than one way to finance a claim and manage the associated risks. The important work lies in identifying the solution that best meets the client’s objectives, including whether different forms of funding and insurance could be combined to strike the right balance between reducing financial exposure and preserving the client’s share of any recovery.

For some clients, the appropriate solution is capital in the form of third-party funding to meet the costs of pursuing the claim. Others can finance the litigation themselves but want to insure some of their own litigation costs. In other cases, the principal concern is protection against an adverse costs order rather than securing capital to pursue the claim.

Insurance may also offer a way to respond to a security for costs application without tying up substantial cash or drawing on banking facilities. A law firm carrying WIP under a conditional fee agreement or damages-based agreement may want to protect part of its work in progress against the risk of an unsuccessful outcome or a lower-than-expected recovery.

Where a judgment has been obtained but remains exposed to appeal, judgment preservation insurance may protect some of its value. Where an arbitral award is subject to enforcement or non-payment risk, a different form of insurance may be available.

Often, the most effective solution is a combination of third-party funding and insurance. Transferring particular risks to an insurer may allow third-party funding to be deployed more efficiently and improve the overall economics of the claim. We work closely with insurers, funders, legal teams to create innovative solutions for financing litigation.

The details matter. That is why we exist

Headline pricing and levels of cover do not tell the whole story. The terms and economics of a funding arrangement, or the wording, exclusions and other material terms of an insurance policy, can determine whether a solution works as intended and supports the wider litigation strategy.

The range of options, and the different ways in which they can be combined, may initially seem complex. Helping legal teams and their clients make sense of them is what we do every day. Our brokers can explain the available structures, model how each is likely to affect cost, risk and potential recovery, and make the relevant trade-offs clear. What initially appears overwhelming can usually be turned into a clear, practical decision.

You do not need to become the expert

Lawyers do not need to become specialists in litigation funding and insurance to advise their clients well. They simply need to recognise when specialist input could help and bring it into the conversation early.

TheJudge has specialised in litigation insurance and risk transfer for more than 25 years. We are ranked Tier 1 by The Legal 500 and have been ranked Band 1 by Chambers & Partners for seven consecutive years. That experience gives our brokers a practical understanding of what the market is likely to support and which details can make the difference between apparent protection and a solution that works as intended.

With the right input, finding an appropriate solution for a client should not feel like another burden. It may be the moment at which a client realises that a claim it believed was too risky, expensive or disruptive is, in fact, within reach.

That process can begin with a conversation of as little as 15 minutes, usually on a no-names basis.