New Jersey: Case Costs vs. Attorney Fees, Explained

Only one of these two deductions is subject to New Jersey's sliding-scale percentage cap — and the order they're taken in genuinely changes the math.

The attorney's fee: compensation for the work

The contingency fee is the attorney's own compensation for handling the case — calculated as a percentage of the settlement or award. It's earnings, not a reimbursement, and in New Jersey it's specifically subject to Rule 1:21-7's sliding-scale percentage cap.

Case costs: real expenses the case required

Case costs are something entirely different: actual out-of-pocket expenses the case genuinely needed. This typically includes expert witness fees, court filing fees, the cost of obtaining medical records, deposition transcripts, and similar litigation expenses. These are reimbursed, not earned — and they're not subject to Rule 1:21-7's percentage limits.

Why the order of deduction genuinely matters here

Because New Jersey's sliding scale is calculated against the actual recovery, whether costs come out before or after the fee percentage is applied changes the attorney's effective take on a given settlement. Calculating the fee on the full gross amount before subtracting costs applies the tiered percentages to a larger base than calculating the fee on the amount remaining after costs. This is exactly the kind of detail a fee agreement should spell out explicitly rather than leave ambiguous.

Two separate categories, two separate rules

It's worth keeping the two categories conceptually distinct: Rule 1:21-7(c) directly governs the fee percentage itself, while case costs are governed by ordinary principles of reimbursement — what was actually spent, documented, and genuinely necessary for the case.

Who fronts the money while the case is pending

Commonly, the attorney's office advances case costs as the litigation proceeds, with reimbursement coming out of the eventual settlement or award. The specific arrangement, including what happens to those advanced costs if the case doesn't result in any recovery, depends entirely on the individual fee agreement.

Case costs vs. attorney fees — frequently asked questions

What's the real difference between case costs and an attorney's fee in New Jersey?

The fee is the attorney's own compensation for handling the case, capped by Rule 1:21-7's sliding scale. Case costs are actual out-of-pocket expenses the case required — they're reimbursed, not earned, and not subject to that same percentage cap.

What typically counts as a case cost in a New Jersey personal injury claim?

Expert witness fees, court filing fees, the cost of obtaining medical records, deposition transcripts, and similar litigation expenses the attorney's office pays on the client's behalf while the case is pending.

Does Rule 1:21-7's sliding scale apply to case costs as well as the fee?

No. The tiered percentage limits in Rule 1:21-7(c) apply specifically to the contingent fee itself; case costs are a separate reimbursement category, typically repaid from the recovery after the fee is calculated.

Does the order of fee and cost deduction matter for the sliding scale calculation?

Yes — since the sliding scale is calculated on the recovery, whether costs are deducted before or after the fee percentage is applied can change the attorney's actual take, which is why fee agreements commonly specify this explicitly.

Who fronts case costs while a New Jersey personal injury case is ongoing?

Commonly, the attorney's office advances these costs during the case, with reimbursement coming out of the eventual settlement or award — though the specific arrangement depends on the individual fee agreement.

This page provides general guidance only and is not legal advice. Figures are based on New Jersey Court Rule 1:21-7, verified per our methodology. Confirm the exact terms of a specific fee agreement with a licensed New Jersey attorney before acting.