Is it better to refer a birth injury case out or take it as co-counsel?

It depends on capacity, cost to litigate, and how much case risk the firm can carry. Referring out produces a smaller share with no ongoing cost and no exposure to the outcome. Co-counsel produces a larger share in exchange for real work, real cost, and real risk. Retaining produces the largest share and carries all of both. The disposition with the highest expected value per matter is frequently not the one with the highest fee, and for a capacity-constrained firm the portfolio answer differs from the per-matter answer.

How are fees divided when a case is referred to another firm?

Division of fees between lawyers not in the same firm is governed by the rules of professional conduct in the relevant jurisdiction. Most states require the client’s informed consent, confirmed in writing, and either a division proportional to services performed or a joint assumption of responsibility. Specific requirements vary and the arrangement should be reviewed by the participating firms’ own counsel.

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Referral economics

By Kevin Schwaner, Founder; Chief Marketing OfficerUpdated 24 August 2026

Most firms make this decision matter by matter, on instinct, and never model the portfolio. Put in your fee expectation, your cost to litigate, your capacity and your win-rate assumption, and this shows the expected value of each disposition — per matter and over a year.

Model one matter, then a year of them

The matter

Expected total attorney fee if the matter succeedsYour figure, from your own experience

Probability the matter produces a fee at all, %Resolution or verdict in the client’s favour

Your cost to litigate it to conclusionExperts, records, depositions, attorney time at loaded cost

Years to resolution

Dispositions

Your share if you refer out, %Subject to the applicable rules of professional conduct

Your share if you co-counsel, %

Your share of the cost to litigate if you co-counsel, %

Your cost to screen and hand off a referred matter

Portfolio

Viable matters you expect this year

Matters you can actually litigate at once

The link carries your inputs. Forward it and the recipient sees exactly this result.

Per matter, expected value

—

highest expected value disposition

Retain it entirely: —
Co-counsel it: —
Refer it out: —
Retain, annualised over the years to resolution: —
Capital at risk if you retain: —

Across the year

Matters above capacity: —
Portfolio EV — retain all, ignoring capacity: —
Portfolio EV — retain to capacity, refer the rest: —
Portfolio EV — retain to capacity, co-counsel the rest: —

Show the arithmetic

Why the portfolio answer differs from the per-matter answer

Figure 1 — the alternative to referring an over-capacity matter is not retaining it, it is declining it. That reframing is what makes deliberate referral development worth building rather than tolerating. How we build it.

**What each disposition actually costs and carries.**
Disposition	Fee share	Cost carried	Capacity consumed	Outcome risk
Retain	All of it	All of it	Years	All of it
Co-counsel	Negotiated, commonly around half	Negotiated share	Substantial but shared	Shared
Refer out	A referral share under the applicable rules	Screening and handoff only	Days	None
Decline	None	Screening only	None	None — and the client still needs counsel

Not legal advice. Division of fees between lawyers is governed by the rules of professional conduct in each relevant jurisdiction, which in most states impose requirements including client consent and a written agreement. This model is arithmetic, not an opinion on permissibility. Have your own counsel review any arrangement.

**Inputs firms most often get wrong in this model.**
Input	Common error	Better approach
Cost to litigate	Counting only hard costs and omitting attorney time	Include attorney time at loaded cost. It is the largest component and excluding it makes retaining look free.
Probability of a fee	Anchoring on remembered wins	Use the last ten concluded matters of similar type, including the ones nobody talks about.
Years to resolution	Using the median	Model the mean. The tail is long in this practice area and it is where the capital is trapped.
Capacity	Counting matters the firm could theoretically staff	Count matters it can staff while also doing everything else it already does.

Provenance

**Where every number in this tool comes from.** Two categories only: measured from a cited federal dataset, or supplied by you. There is no third, and there is no industry average anywhere in it.
Input or output	Origin	If it is wrong, what breaks
Expected fee and probability of a fee	You — from your last ten concluded matters of similar type	Every expected-value figure, proportionally.
Cost to litigate	You — including attorney time at loaded cost	The retain and co-counsel figures. Omitting attorney time is the most common error, and it makes retaining look free.
Fee shares	You — as actually negotiated, subject to the applicable rules	The co-counsel and refer-out figures.
Capacity and matter count	You	The portfolio comparison, which is where the answer usually changes.
Expected values	Computed — probability × fee × share − cost × share	Nothing; the equations are shown.
Any view on what is permissible	Not present. Fee division is governed by the rules of professional conduct in your jurisdiction.	n/a

No default in this tool is a claim. The starting values exist so the page is not blank on arrival. They are not benchmarks, they are not averages, and they describe no real firm. Replace every one of them with your own before acting on the result. See Methodology.

Authorship & review

Author: Kevin Schwaner, Founder; Chief Marketing Officer. Credentials.
Last reviewed: 24 August 2026
Corrections: Found an error? Tell us and it goes in the dated corrections log, whether or not it flatters us.

Referral economics

Across the year

Why the portfolio answer differs from the per-matter answer

Provenance

Other tools

Cost per signed case

Screening capacity planner

Firm site audit

Authorship & review