Eric Landon, Attorney at Law
I’m a newer attorney, and one of the hardest parts of my job isn’t arguing motions or preparing for trial; it’s sitting across the table from someone who’s been harmed and explaining what it actually costs to do something about it.
We give every potential client a litigation cost overview and timeline handout. It’s meant to to walk them through the process, the uncertainty, and the reality that cases don’t move in straight lines. The part that always lands the hardest is the cost.
A relatively simple case with few witnesses, modest discovery, and no unusual complexity can cost well into the six figures to take to trial. And that’s before you start adding variables that most cases actually involve: more witnesses, more experts, more documents, more parties. So, I find myself having the same conversation over and over again: “You may have a good case. But that doesn’t necessarily mean it’s one that makes sense financially.”
Economics of a Litigation Case
Litigation is unpredictable. You don’t know how long the case will take. You don’t know if it will settle early, late, or not at all. And you don’t know what the outcome will be until it’s over.
What you do know is that if you start down that path, you have to be prepared to go the distance. Once a case is filed, costs don’t pause while you wait for resolution, they build. If the case doesn’t settle, those costs can eventually outpace the value of the claim.
That forces attorneys to make difficult decisions. Even with contingency fee arrangements where we don’t get paid unless the client does, we have to be selective. If the numbers don’t make sense for the prospective client and the firm, we can’t take the case.
The Risk No One Talks About: Collection
Even when everything goes right, liability is clear, the case is well-prepared, and the plaintiff wins at trial, there’s still one more question: Can the judgment actually be collected?
That uncertainty is part of every case evaluation. A claim might look viable on paper, but if there’s no realistic path to recovery, the financial risk becomes even harder to justify for both the attorney and the client. Now the client is facing multiple layers of uncertainty:
- The cost of litigation
- The length of the process
- The unpredictability of the outcome
- The possibility of collecting nothing at the end
For many people, that combination makes pursuing a claim simply impossible.
Who Gets Priced Out?
The result is that civil litigation becomes inaccessible to the very people it’s supposed to serve — everyday individuals who have been harmed. We see this often in our litigation practice that is focused on trust and estate disputes and elder abuse. Many of these cases involve real harm, but the damage may not be high enough to justify the cost of litigation. As a result, claims are delayed or not filed at all. Often elder abuse claims are brought after death with the hope that the estate may be able to pursue the claim when no one is relying on that money for survival.
Where ORS 20.080 Falls Short
ORS 20.080 is supposed to address the economic barrier to smaller cases by allowing attorney fee recovery in certain situations. But the statute only applies when the amount pleaded is $10,000 or less. “In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action…” ORS 20.80(1)
In today’s world, that number doesn’t reflect the reality of litigation costs. There’s a wide range of cases in the $15,000 to $80,000 range that fall into a gap where the claim is too large to qualify under the statute but too small to justify the cost and risk of litigation. So those cases may never see a courtroom, or even an attorney’s office.
Raising the Cap Could Help
If ORS 20.080 had a $100,000 cap, it would change the calculus. It would allow attorneys to take on more cases that are currently just outside the margin of viability, it would give clients a more realistic path forward, and it would put meaningful pressure on defendants to resolve cases earlier, before costs spiral.
Importantly, it would also reduce the need to turn people away for reasons entirely unrelated to the merit of their claims. Right now, attorney fees are one of the biggest barriers to resolution. Expanding the claim cap to include a higher range of cases would help bring those barriers to justice down.
A System That Reflects Reality
ORS 20.080 was designed to make smaller cases worth pursuing. That goal still matters. But the definition of “small” has changed, while the statute has not kept up.