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will be suing a person with assets or an insurance company, and the likelihood of a settlement is extremely high because the "economics of a trial" (as noted previously) are much higher than the formula for calculating a settlement. Other reasons for taking a case on contingency are notoriety (in other words, how much free publicity the attorney will get by representing you) or service to the downtrodden (that is, you were the aggrieved party from some big corporate conglomerate and you can't even begin to defend yourself, or you've had your civil rights violated or something along those lines). Sometimes, attorneys will take a case on contingency out of the goodness of their heart. Ultimately, the attorney (or his or her firm) will be the sole arbiter of the choice to take you on contingency. For copyright, a usual "contingency deal breaker" is the lack of registration, and for contract law it might be the absence of evidence of a "meeting of the minds" (whether a signature, correspondence indicating agreement, and so on).

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NOTE

"A meeting of the minds (also referred to as mutual assent or consensus ad idem) is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. This condition is often considered a necessary requirement to the formation of a contract…. [O]nly when all parties involved are aware of the formation of a legal obligation is there a meeting of the minds." This was the definition from Wikipedia as of late 2009, and while that body of text may change, this definition is exceptionally well stated in this incarnation, so it warrants citing here.

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Even in cases taken on contingency, you, the plaintiff, will usually have to cover court costs— the costs of discovery and depositions. Except in rare circumstances in which the law firm bankrolls every expense (as in many personal injury cases, in which the plaintiff is practically indigent), these costs are significant. The "contingency" part almost always only covers the law firm's billable time for attorneys, legal researchers and assistants, and other staff time.

When you ask an attorney to take a case on contingency, you are asking him or her to take a gamble on you and your case. Attorneys are, by their very nature, mostly adverse to risk, so you'll need to make a compelling case or find that needle in the haystack who has a soft spot for the wronged photographer.

When You Pay for Advice, Heed It

There is an old adage that advice is worth what you pay for it. This is usually attributed to those who offer unsolicited advice on life's trials and tribulations. Although this adage is questionable, the converse is certainly true. When you're paying an attorney to make objective determinations and the resulting counsel, heed that counsel, or at the very least consider it when making your own tactical and strategic decisions. Either way, you will be billed for that advice, so make it worthwhile.

Oh, and one last point. It is a sad fact that photographers have one of the highest divorce rates in the world. Respected photographer and fellow espouser of good business practices, Rick Rickman, now a professor at Brooks Institute of Photography, penned an article in 2002 on photographers and divorce rates. Rickman, in a conversation with David Burnett, co-founder of Contact Press Images and an icon in the photographic community, reported that "he [Burnett] sometimes felt as though his career had been slowed by the fact that he devoted time to his family, but that he wouldn't change his life in any way." I will touch more on Rick's and David's sentiments in Chapter 30, "Striking a Balance Between Photography and Family," but know that you might also find yourself in the position where a divorce attorney is needed if you don't pay attention to the more important aspects of your life—family. I do hope that this is never the case, but if it is, at least it's not in the same league as our lout from