SettleScore
Guide

Sliding Scale or One-Third? The Fee Choice Most New Yorkers Never Make

New York injury lawyers may charge a sliding scale or a flat one-third. They cross at $33,000. Here is the math and how to ask for the better one.

By Nico Steele · Published

Almost every injury retainer in New York offers a flat one-third. Almost every client signs it without knowing a second option sits right beside it in the court rules. On a small case the flat third is the better deal. On anything above $33,000 it is not, and the gap gets wide fast.

Two options, both legal, both in the rules

New York's Appellate Division caps what an injury lawyer can charge. The cap comes in two shapes, and they apply statewide.

The sliding scaleThe flat one-third
How it works50% of the first $1,000, 40% of the next $2,000, 35% of the next $22,000, then 25% of everything above $25,000One percentage, up to 33⅓%, on the whole recovery
Status in the rulesThe defaultAn option you elect in writing
Best forLarger recoveriesSmaller recoveries
Lawyer can later ask a judge for moreYes, in extraordinary circumstancesNo

The first thing to notice is which one is the default. The sliding scale is the baseline the rules set. The flat third applies only if your retainer says so — it is something you agree to, not something the law imposes.

Where the two cross: $33,000

The scale charges more at the beginning and then settles at 25% forever. The flat third never comes down. Run both across a range of outcomes and the crossover is exact.

RecoverySliding scaleFlat one-thirdDifference
$10,000$3,750$3,333Flat third saves you $417
$25,000$9,000$8,333Flat third saves you $667
$33,000$11,000$11,000Identical
$50,000$15,250$16,667Scale saves you $1,417
$100,000$27,750$33,333Scale saves you $5,583
$250,000$65,250$83,333Scale saves you $18,083
$500,000$127,750$166,667Scale saves you $38,917
$1,000,000$252,750$333,333Scale saves you $80,583

At a million dollars the sliding scale works out to about 25.3% while the flat third stays at 33.3%. That is roughly eighty thousand dollars, which is not a rounding difference.

So why does everyone use the flat third?

A few reasons, and they are not sinister:

  • It is simpler to explain and simpler to bill.
  • On the small and mid-size cases that make up most of a firm's volume, it genuinely pays the firm better.
  • It has been the standard retainer for decades, so it is what the form says.
  • Most clients never ask, so there is no pressure to offer anything else.

No firm is obligated to give you the sliding scale. A busy firm may decline, and that is their right. But the question is fair, it costs you nothing to ask, and how a lawyer answers tells you something about how they will handle the rest of your case.

What the flat third gives up on the lawyer's side

There is a trade running the other way, and it is worth understanding before you push hard.

  • A lawyer working on the sliding scale can apply to a judge for a larger fee if the case turns out to involve extraordinary circumstances.
  • A lawyer who elects the flat third gives that up. The third is the ceiling, whatever happens.

So the flat third buys certainty for both sides. On a case that might become a monster, that certainty has real value to you.

How to actually raise it

You do not need to sound like a lawyer. Try this:

  • "Is this the flat one-third, or the sliding scale under the court rules?"
  • "If my case settles for more than about $33,000, the scale costs me less. Can we use it?"
  • "If we stay with the third, is that firm for the life of the case, including trial?"

That last question matters. In an ordinary injury case, a fee of 40% sits above what the rules permit without a judge's approval. If you are quoted a percentage that climbs once the case reaches trial, ask to see that term in the retainer and ask which rule allows it.

The other number in the same paragraph

Whichever percentage you land on, the retainer also has to say whether the fee is figured before or after case costs come off the top. On a $100,000 settlement with $5,000 of costs, taking the fee after costs leaves you about $1,667 more. Firms that compute the fee on the gross usually absorb the costs if the case is lost, so it is a trade rather than a trick. Ask which trade you are being offered.

The short version

  • The sliding scale is the default; the flat third is an election you sign.
  • They cost the same at $33,000. Below that the third is cheaper, above it the scale is.
  • Nobody has to offer you the scale, but nobody is offended when you ask.
  • Watch for any fee above one-third in an ordinary injury case.
  • Settle the before-or-after-costs question in the same conversation.

The percentage deserves one conversation. What happens to your check afterward depends just as much on cost discipline and on how hard the firm pushes back on your medical bills. Neither of those appears in any advertisement.

Try both fee structures in the recovery calculator to see how a different percentage could affect your illustrative take-home amount.

This article is general information about New York law, not legal advice for your situation.

Sources: 22 NYCRR 603.25 (Manhattan, Bronx) · 22 NYCRR 691.20 (Brooklyn, Queens, Staten Island) · 22 NYCRR 806.27 · 22 NYCRR 1015.15 · 22 NYCRR Part 1215