Sampling from the actual portfolio of a leading third-party litigation financier, this Essay demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments” may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees—even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiffs’ attorneys, often in the same case.
The overview of the business strategy of appellate financing contributes to a larger theme: the role and impact of external money in litigation. In particular, this Essay challenges the assertion that third-party funders necessarily bring about more litigation; after all, appellate funders support prevailing plaintiffs hoping to withstand the procedural onslaught of losing defendants vying for a rematch. Therefore, and contrary to popular belief, this Essay argues that in a dispute funders can generally play either offense or defense, as long as the risks and rewards are right.
A Matter of Trial and Error, or Betting on Appeals,
Notre Dame L. Rev. Online
Available at: http://scholarship.law.nd.edu/ndlr_online/vol91/iss1/1