What is a Hostile Work Environment?

By Harry Jay Levin

Of the many areas where there is public confusion regarding the law, the most commonly misunderstood is: workplace hostility.  This blog is intended to clear up the ambiguity.

If you were to look up, or Google the definition for the word “hostile”, synonyms like, mean-spirited, unfair, nasty, harsh, adversarial, conflicting, confrontation, malicious, and antagonistic, would be on the list.

Hardly a month goes by where we aren’t contacted by a potential client who describes a horrific work situation where the boss is toxic.  She screams, curses, throws stuff, routinely demeans subordinates and acts in an objectively uncivil fashion.  Though inappropriate there is no legal protection against a person who treats another badly, even if the behavior is, under any definition unacceptable and inappropriate.

While any one on the above list is appropriate in common parlance or in conversation.  In the law, hostility is a term of art and defines a completely unique situation.

Legal hostility means that one or more persons have treated another employee, regardless of job title, improperly due to that employee’s gender, more commonly known as sexual harassment.  Completing the circle, sexual harassment means that the workplace has become unbearable because of sexually charged words or actions.  Please see our blog on “Sexual Harassment.”

While non-consensual touching or requirement for sexual favors are obviously hostile, the more subtle, yet as actionable, are dirty jokes, comments on physical attributes, double entendres, sexually charged cursing and inappropriate gender driven comments.  In short anything that is said, written or in any communicated that is sexually charged directed to either men or women is potentially a problem.

So if you have a boss or co-worker who is just the biggest jerk in the world, treating you like a servant, insulting you on a daily basis, blaming you for mistakes you had nothing to do with or similar obnoxious behavior, your recourse is to quit.  On the other hand if the offensive behavior impacts the workplace environment because you are mistreated due to your gender, then you may have a cause of action.

Our Firm, for decades, has been handling Hostile Workplace Complaints and we welcome inquiries of all kinds.


UPDATE: No More “Permanent” Alimony in NJ

By Colleen Cyphers

On Wednesday, September 10, 2014, Governor Christie signed a bill that revised the alimony laws in New Jersey. While there are many changes to the alimony laws included in the bill, here are a few of the highlights:

1. There is no more “permanent” alimony in New Jersey. Permanent alimony was based in a time when many women were financially dependent on their husbands, because they stayed home to care for the children and manage the household. Since many women are now also breadwinners, the idea has been deemed archaic by many lobbyists. The new law does away with lifetime alimony. Now, ex-spouses that are making payments can apply to the court to have the payments stopped or modified when they reach the age of retirement or 67. This part of the new law applies to those who get divorced in the future, as well as those already divorced and paying alimony. Also, in marriages of fewer than 20 years, the length of the payments cannot exceed the length of the marriage unless a Judge finds exceptional circumstances to lengthen the timeframe for the payments. So, if you were married for 10 years, you would not be obligated to pay alimony for more than 10 years.

2. There are more specific guidelines under the new law regarding ending alimony payments when an ex-spouse begins living with a new partner. Under the previous law, payments were to stop when an ex-spouse co-habitated with a new partner, even if not married. However, litigants found ways to get around that, like using the address of a family member, but living at the partner’s house. The guidelines under the new law are stricter, to stop such a situation from occurring.

3. The new law provides that ex-spouses paying alimony can apply to the Court to reduce their payments if they are out of work for three (3) months. While there was no time frame under the old law, many Courts followed the unwritten rule that a person had to be out of work for one year to receive a reduction in payments.

Unfortunately for many, the new law does not apply to those divorced prior to the signing of the bill and who are already paying alimony. Alimony is a contractual obligation and cannot be changed by a change in the law. To see if the new law impacts your alimony payments, or to inquire about getting a divorce, please contact the law firm of LevinCyphers for a consultation.

What Can I Do if I Feel Mistreated by a Construction Company?

By Harry Jay Levin

For years and years one truth was part of most residential construction projects; one or more of the following aggravations would occur: either the project would not start on time, there were unexplained gaps in the work schedule, the work was not done when promised and/or there were usually unexpected change orders that would surprisingly increase the costs of the job. In residential circles you rarely heard people boasting that our project came in on time and on budget.

The customary “schpeel” was the customer was lucky as the contractor had an opening and could begin the job once the deposit was paid. Excited to get going, the customer forked over 1/3 or more of the job price, then the excuses started. The weather, a shortage of materials, emergency of another customer, whatever, but the job was off track soon after it started.

The reality was the contractor really did not have a down period and your job had to be somehow jammed into an already jammed packed work schedule.

Until recently there was little a person could do; complain to the Better Business Bureau, lodge a complaint with the Department of Community Affairs, call a local politician or tell as many people who’ll listen to stay away from this or that contractor. This all changed with the passage of the New Jersey Consumer Fraud Act.

The state Legislature in response to thousands of complaints from those who were ripped off, tricked or otherwise hoodwinked, passed a law, some say the strongest in the country with real teeth to protect the citizenry.

The Act imposed certain mandatory requisites as part of the relationship between a contractor and a residential customer. These requisites include the identification of the contractor’s license number issued by the state to “qualified” contractors, a firm start and end date of the work, a full explanation of the costs, the type and grade of materials to be used, statement of insurances and of course a detailed description of the work to be performed. If any one or more of these items are omitted the contractor has committed “per se” violations of the Act. If these items do not appear on the contract the contractor is automatically liable for damages, including the cost of the job, multiplied by 3 times AND payment of your attorney’s fees.

As you can see the Act has some real “muscle” and this has caused a huge improvement in how customers are treated and how contractors must behave. In the old days only the most heinous of acts ever were scrutinized, like the bait and switch, where high quality samples were
promised and the cheap materials were applied. Now with the damages more easily provable, due to the per se violations and the likelihood of getting reimbursed for costs, treble damages and legal fees, makes filing a bona fide consumer fraud case a no-brainer.

In order to be successful all a consumer must do is prove that the requisites are lacking and that they have experienced some impact and the Court can award the categories discussed above. Whether the requisites are met or not, the Act makes a claim for inadequate or negligent workmanship more easily addressed. A statement made to a customer can rise to the level of a representation which if shown to be untrue can rise to the level of a fraud. Once this is accomplished all of the penalties stated in the Act kick in.

So if you find yourself as many before you have, where you are so frustrated with your home improvement contractor you can scream, instead go see a lawyer who has experience with these kinds of situations and instead of getting miffed, let your contractor know that you know all about the Consumer Fraud Act and unless he or she gets their act together a complaint will be filed. After all there is no fury, like a consumer scorned who knows his/her rights.

What does my Homeowner’s Insurance Claims policy cover and what happens when claims are denied?

By Gerald F. Herrmann

As you travel the minefield of insurance coverage, you may ask “What coverage should you make sure you have?” First question to ask is: “Am I in a flood zone? If you are be sure you have flood insurance. Depending on the zone you are in, flood insurance is great coverage for the money. If you are in a flood zone it is imperative to have flood insurance as most, if not all, homeowner insurance policies do not cover flood damage. If you are not in a flood zone that does not mean you should not have flood insurance in fact that is more of a reason to have coverage. If you are not in a flood zone the premium for coverage will be very small and may be as low as $200.00 per year with $250,000.00 in coverage. Storms like Hurricane Sandy do happen and it is up to you to be prepared and have the necessary coverage. Because of the amount of rain, storm surge ground saturation places that never flooded suddenly flooded and those without flood insurance were left to perform the repairs without the assistance of insurance coverage.

As a result of Super Storm Sandy many homes were severely damaged to the point that when the home is rebuilt it has to be built to the current building codes. This extra cost is not covered under most homeowner’s insurance policies. However there is a provision that you can add to your policy for a reasonable increase in premium that will cover code compliance, but if you don’t ask for the coverage it is not usually offered by your insurance agent. Adding this simple coverage would have saved homeowners tens of thousands of dollars when repairing their home. There are other coverage’s that are available. It is important that you ask your insurance agent for a list of all coverage’s that are available and what the cost of each coverage is so that you can make an informed decision as to what coverage’s suit you best. As an example, if you had code coverage and the new code requires the finished floor elevation for the first floor must be ten feet higher, depending how the code compliance clause is written, code compliance could cover the cost. In most cases the cost to raise a house some ten feet could be as high as $60,000.00.

What happens when you can’t come to an agreement with your insurance company regarding your damages? The insurance company can invoke the appraisal clause of your policy that says you have to have someone appraise the damage and they will have someone appraise the damage and then the issue is submitted to an umpire who will make a decision. Therefore, it is important that you have someone adequately represent you so that all covered items are submitted to the umpire. During this process the insurance company may invoke their right to take your examination under oath. This is a proceeding where a representative of the insurance company will ask you questions and you must respond to them under oath; the same as being in a courtroom before a judge. This is an important part of settling any claim so unless you are very comfortable with your claim and fully understand your policy you should seek representation.

What can happen when you offer a reasonable offer to settle and it is rejected by your insurance company or if they reject coverage and you are sure coverage is provided by your policy? You may be in a bad faith situation. In New Jersey, as in many other states, there is a covenant of good faith and fair dealing imposed on all contracts. In some states like Florida it goes a little further so that if you feel your insurance company is dealing in bad faith they you would file a Civil Remedy Notice that puts the insurance company on notice that you are going to seek damages beyond what it will cost you to repair you house for their failure to negotiate fairly.

There was a recent case decided in July of 2012 where a homeowner had damage to his home and a retaining wall at the river’s edge. The retaining wall was extensively damaged yet the insurance company said the retaining wall was in disrepair and if its integrity has not been compromised it would not have failed despite the high wind conditions. The insurance company had the wall inspected and felt their responsibility was $62,000.00 and they issued a check. The homeowner rejected their offer and returned the check and had his own estimate of repair from two contractors one for $425,688.00 and another for $365,485.00. When an insurance company fails to conscientiously and timely settle a meritorious claim or withhold benefits for reasons that are not even debatably valid and the damage is within the contemplation of the insurance (in other words contained in the policy) there is a claim for the bad faith denial of the claim. In this case after deliberations the jury awarded the homeowner $624,023.20, representing the total estimated cost to replace the wall and landscaping.

A yearly review of all your insurance policies to ensure you have proper coverage is the best insurance you can ever purchase.

Should I File A Property Tax Appeal in New Jersey?

By Colleen Cyphers

Property taxes in New Jersey are based on the assessed value of your property, which should reflect the fair market value of your home and property. For an assessed value to be considered excessive or discriminatory, it must be proved that the assessment is more than 15% over the equalized fair market value of the property. The equalized fair market value is determined by adjusting the fair market value by the average ratio of assessments in the district in which the property is located – this number can be obtained from your municipality. By law, the current assessment is presumed to be correct, and you must overcome the presumption of correctness to obtain a reduction in your assessment.

To determine whether to file an appeal, you must first establish whether your assessed value, adjusted by the district average ratio, is more than fifteen percent above the fair market value. The fair market value can be determined by comparing sales of similar homes in your neighborhood, or a more accurate but more costly option is to obtain an appraisal from a real estate appraiser. That number is compared with the assessed value of your property, which you receive in a notice from the municipality each year, after applying the average ratio. If the adjusted assessed value is more than fifteen percent above the fair market value, you can file a tax appeal petition.

The property tax appeal must be based on the property’s fair market value as of October 1 of the preceding year. The petition, along with the filing fee and proof of comparable sales and/or a real estate appraisal, must be submitted on or before April 1 or within 45 days of the bulk mailing of the assessment notices, whichever date is later. A recent law in New Jersey, by way of a demonstration program, moved the filing date in Monmouth County to January 15 or 45 days of the bulk mailing of the assessment notices, whichever date is later.

In many instances, the tax assessor, municipal attorney and the taxpayer agree to a settlement and the assessed value is reduced without a hearing. If a settlement is not reached, a hearing date before the County Tax Board is scheduled.

For more information or advice on whether you are paying more taxes than the value of your house, please call the attorneys at Levin Cyphers.

The Legal Side of Animal Bites

By Harry Jay Levin

You would be shocked to learn how many claims are registered by those who have been bitten by an animal, most notably dogs. For reasons discussed below, the incidents of filed claims have exploded. Referring to any court docket you will see a huge number of personal injury cases involving animals. While adult bite victims are historically present, the incidents of children being victims are enormous.

One of the reasons is that as a society we are fixated on adopting out strays animals instead of putting them down. Therefore, more and more animals with a bite history are being reintroduced. Strays come about for a variety of reasons, economic or inability to care, but often the reason is that the animal has nipped or bitten a person or another animal and the owner abandons the animal.

There is a time honored misunderstanding that has risen to societal proportions that is patently untrue. There is no such thing as a first free bite.

If your pooch that you’ve love and nurtured for over a decade has not demonstrated the least bit of aggression, has never even nipped at anyone and is nothing more than a “mush”, it doesn’t matter. If it bites, you are most assuredly liable.

Except only under the most extreme and rare circumstances, for example, where there is incontrovertible proof the animal was provoked, a bite is deemed to be a matter of strict liability. Putting all of the legalese aside, this means if your pet bites, you are on the hook for all of the damages your pet caused, physical and emotional.

Since damages are driven by the seriousness of the bite, the age of the victim, the gender of the victim, the type of work the victim performs and the location of the bite, no standard can be stated. Suffice it to say, a bite to a young girls face is much more “valuable” then a bite to an adult’s upper thigh, generally covered by clothing.

You should know that most, if not all, Home Owner’s Policies provide insurance coverage if your animal bites someone, even another animal.

Medical Insurance Explanation of Benefits and Balance Billing

By Gerald F. Herrmann

First what is an explanation of benefits? Sometime after you receive medical care from a physician or any healthcare provider, like a Chiropractor, physical therapist, or neurologist you will receive from your insurance company a form that explains the benefits paid by the insurance company under your policy. This is your explanation of benefits (EOB) and it is a VERY important document. If you receive a EOB and you do not recognize the doctor’s name or remember receiving any care from the doctor or healthcare provider call them and have them explain when you were there and what services were rendered. If they cannot explain what happened to your satisfaction call your insurance company and have them review the claim.

You are the first and best person to stop healthcare fraud so work with your insurance company to make sure you get all the benefits you are entitled to but to also make sure others are not being paid for services not rendered. As an example, if you had a surgical procedure in most cases the first visit after the procedure is free because the after surgery visit is included in the fee for the surgery. On a visit to the doctor after some minor surgery the reception person wanted me to pay a co pay for the office visit when I informed her that it was my post surgery visit and included in the surgery she said all visits require a co pay. I asked to speak to her billing supervisor and when I advised her that it was my post surgery visit and that the procedural code for the surgery included my post surgery visit and that they had been paid by my insurance company she reviewed the billing code and agreed so I did not have to pay an additional co pay.

On another occasion for the same surgery, I received a bill from the surgeon seeking an additional $150.00. This was about 6 months after the surgery and seemed odd. I contacted my insurance company and asked if the insurance company had paid the surgeon and the said yes. I then explained that the surgeon was billing me again and it appeared to be a case of balance billing and over billing. The end result was instead of me sending the surgeon a check for $150.00 I received a check from the surgeon’s office for $250.00 as the deposit I gave was in excess my obligation under my policy.

Balance billing occurs when a healthcare provider bills more than he/she agreed when they became a participating doctor in their network. As an example if the doctor agreed that for a certain procedure he would charge the insurance company $200.00 and your insurance policy is an 80/20 plan (the insurance company pays 80% you pay 20%), then the insurance company will pay $160.00 and you will pay $40.00. However the doctor’s usual charge for the procedure may be $300.00 so if you receive a bill for $140.00 this is balance billing. He/she is charging you the difference between what the insurance company paid and what his standard charges. When the doctor or healthcare provider entered into a participation agreement with your insurance company he/she agreed to do the procedure for a reduced set amount so that he would get patients covered by the insurance company. If you get balance bill contact your insurance company and they will help you and make sure you only pay what you are obligated to pay.

Although these situations do not happen often they do happen so make sure you take the time to review your EOB and compare it to the bill you receive from your doctor. The EOB you receive from your insurance company will state the amount you are responsible for and if that amount is different from the amount the doctor is billing there is a problem.

It is important to verify that any health care provider you go to is a participating provider with your insurance company. Be careful a call to the doctor’s office may not be sufficient as those included in the list of participating provider’s changes frequently. If your insurance company has a website check if the doctor is a participating provider and if he/she is print the page for your medical file. If a claim is listed on the EOB as an out of network provider you will have proof that on the day you checked the doctor was a participating provider. If you do not confirm a doctor could be out of your provider network and you will be billed at out of network rates which are much higher and then the doctor can charge you his/her customary rate which is far greater than the rate negotiated by your insurance company for in network providers.

Healthcare insurance may seem complicated but if you are careful and keep your EOBs and match them to any billing from the doctor you will be able to insure that you will never overpay for your healthcare. Remember the more involved you get in your healthcare the healthier and weather you will be. This is also why it is important to check the list of providers that are listed by an insurance company before you sign up to make sure your doctors are in their network. You can also check the drug list (called a formulary) to make sure that the medications you take are listed, if not you may want to consider an insurance company that provides the benefits that best suit your healthcare needs.

What does the NJSPCA do in terms of law enforcement?

By Harry Jay Levin

Over the years I have had the honor to serve as General Counsel to the two largest animal welfare and protection agencies in the state of New Jersey. This blog concerns the sole law enforcement arm within the state of New Jersey. A future blog will discuss the Humane Society– whose mission is animal rescue, veterinary care and adoption.

Unlike many other states, in New Jersey there is a distinct separation between the law enforcement arm for animal cruelty and the humane arm rescuing, sheltering and adopting out domestic animals.

The New Jersey Society for the Prevention of Cruelty Animals (NJSPCA) is an official agency of the state. The NJSPCA was created by an act of the Legislature in 1886. Since that time the agency has been providing animal cruelty investigation and prosecution throughout New Jersey. Organizationally some of New Jersey counties have their own SPCA. In those counties where there is no SPCA the state NJSPCA is responsible for fulfilling the Legislature’s intent. Where there is a county SPCA, the state NJSPCA shares concurrent jurisdiction with the county and works along with municipal and county prosecutors to enforce the law and prosecute offenders.

The operations of the NJSPCA are not unlike any law enforcement branch. The Humane Law Enforcement Officers, certified by the NJ State Police upon intense internal training, have pervasive powers. In addition to carrying weapons, the NJSPCA has the authority of arrest. These men and women wear law enforcement uniforms and carry state credentials.

One fallacy of the authority of the NJSPCA is that they actually prosecute the animal cruelty cases. While they assist local and county prosecutors they themselves do not prosecute the case although they customarily will serve as a witness, testifying to the fruits of their investigation.

Another lesser known fact is that the NJSPCA enjoys immunity from their acts and omissions. Just like municipal, county or state police, NJSPCA Humane Law Enforcement Officers are insulated from suit. The only exception is if there is a claim of a violation of constitutional rights, such as an illegal search or seizure of private property, in the form of an animal.

The structure of the NJSPCA remained ostensibly the same until 2006 when there was sweeping amendments to the law. In order to better supervise the operations of the NJSPCA, the structure of the Board of Trustees was revamped. In addition to those elected to the Board, the Governor had the right to appoint 3 Trustees, moreover each segment of the state (North, Central and South) had mandated representation on the Board. New reporting responsibilities were implemented and oversight by the NJ Attorney General’s Office was intensified.

Animal cruelty cases, while always disturbing, often get overlooked unless there is a case of such perverse animal treatment that both the media and the public jump in. Remarkably there are thousands of people who monitor, on a daily basis, the comings and goings of animal related activities. The network is simply incredible with a proliferation of web sites, blogs and articles to the media.

As is usually the case with more provocative crimes in our society, when a high profile animal cruelty case hit the radar screen, there is usually some movement for reform or strengthening the penalties. Recently as a result of one such case, where a dog was allegedly tossed down a 16- story building garbage chute, more “teeth” were added to the law. Traditionally, an animal cruelty charge resulted in a disorderly persons conviction. With the newest amendments, it is much easier to charge and prosecute animal cruelty as an indictable offense. The biggest difference is that in the past it was a rarity for a county prosecutor to deal with animal cruelty charges but now each of New Jersey’s 21 county prosecutors has the authority to take illegal activities to a higher level.

It is a fact that incidents of animal cruelty are on the rise throughout the state and country. Moreover, the nature of the intensity or heinousness of the cruelty acts has exploded. We not only see a growth in the number of traditional cases of cruelty, lack of sustenance and maltreatment, but there is a marked growth of dog and cock fighting. In order to provide competitors for the ring, breeders torture the animals instilling an unnatural sense of fierceness and aggressiveness to provide entertainment, often to hundreds of spectators, where huge amounts are wagered.

Whether you are a pet person or not, there is little tolerance for those who abuse animals. Television is replete with commercials seeking donations to protect and care for animals and the amount of money donated annually is in the tens of millions. We have a particular fascination with pet ownership in this country and so with that, unfortunately, there comes those whose interest in animals is harmful and anti-social.

To Sue or Not to Sue; That is the Question

By Harry Jay Levin

When you are faced with a decision whether or not to file a lawsuit, it should not be driven by emotion. In my 40 years of law practice I cannot recall a single time I filed a lawsuit on behalf of a client who was not really miffed. I’ve heard so many times, “I’d rather pay you.”

If you are at this point, your money is best spent if you ask your lawyer to draft a pre-litigation brief for your review. The brief should include a description of all of the claims and possible defenses, an estimate of the costs, and the time involved.

If after reading the brief you are still as committed to suing then it is time to file.

The problem is that an estimate is almost always impossible to predict since the cost is driven by the approach of the adversary. If they are spending as much time as possible then you are writing a blank check. I’ve seen litigating against some who probably claimed to be sensitive to costs, but are responsible for escalating costs and expenses to an unreasonable degree. By the way, don’t think the Court will intervene, because they won’t! It’s rare, for a Judge to comment on the “scope” of the discovery, document production or depositions.

If you find yourself in a situation where you have not yet tried every possible alternative, then filing litigation may be the only way to go. That said: a potential litigant should exhaust every possible route.

One thing I have not seen with sufficient regularity is obtaining a second opinion before venturing into litigation. It is money well spent if you have two competent and experienced lawyers who agree that litigation is the only way to proceed.

We will provide other cost saving steps if you find yourself in litigation, one of them is this:

If a deposition is necessary, make sure it’s videotaped, legally it’s called, de benne esse. While it may be a bit more expensive, you will have both the testimony but also the body language of the deponent. I cannot overstate the importance of having this in your quiver of evidence. A second benefit is if the person dies or becomes unavailable, this type of deposition can be used in court.

You can control the costs of litigating and the best way to do this is to stay in touch with your lawyer and comply fully and quickly with all requests from your counsel.


Why don’t law firms take on contingency cases?

By Harry Jay Levin

Just about every time we are facing filing a litigation the question comes up, will you take the case on a contingency; except in circumstances like auto accidents or workplace injuries, the answer is usually no.  Here’s why.

Law firms are not comfortable with the “if” of a case, although they are comfortable with the “when.”

A law firm is likely to take any case where the liability is clear, meaning that there is little doubt that the defendant caused the damage or injury.

You were stopped at a stoplight and a commercial vehicle slams into you, causing you to go to the hospital for a severe injury affecting you in some permanent fashion. 

(Remember if you live in New Jersey you probably have no fault insurance so the injury must be serious, not whiplash or soft tissue damage.)

 While the schedule of when the case is resolved either by a settlement or a trial is not clear, firms are quite satisfied to wait as long as the defendant is at fault AND there is money to pay, this usually means an insurance policy or a financially secure defendant.

One reason why a law firm may be reticent to take a non-personal injury case on a contingency is what we have coined as “litigation fatigue.”

Here is how litigation fatigue happens.

A client comes in your office spitting vinegar and wants to sue, saying she doesn’t care how much it costs, she’d rather pay you and want to “punish” the defendant for what he has done.

The client who is hopping mad, happily signs your retainer agreement and hands over a nice retainer check and the process is begun.

Due to a myriad of reasons not the least of which is crowded courts, litigation takes years and only the simplest of cases are inexpensive.  The likelihood is that the case goes on for years and each month an invoice is sent.

At some point the emotion which supported the filing of the law suit lessens; life gets in the way, more important issues arise and the client looking in her rear mirror wonders why she sued in the first place.  She starts complaining about the escalating costs and wants the case to be over, under any circumstance.

Because the law firm presumably will have been paid for the work devoted to the file the law firm will follow, without objection, the client’s instructions.

Now, let’s change the facts, slightly.

Instead of billing on an hourly basis for time spent, the arrangement was a contingency.  After going through a couple of years of litigation the client, for whatever reason, is no longer interested in devoting time and energy and tells the law firm to end the case.  The client is tired of answering interrogatories, providing documents, attending depositions and being obligated to read and sign voluminous documents.

Because the case is not fully matured the amount of settlement will surely be less because all of the discovery steps have not been completed.

The law firm must follow the directions of the client, no matter how those directions impact the recovery, as the law firm will be paid its 33% on a smaller number or worse will have to settle without being paid. 

This is why law firms will not take on contingency cases.