Once a complaint is served on a company, the clock starts ticking. That clock may constrain the ability of a law department to negotiate a bespoke fee arrangement with a law firm. After all, there have to be appearances made and answers filed. Plaintiffs often grant extensions, but one never knows.
It takes time to figure out arrangements such as bonuses for performance and holdbacks (See my posts of Sept. 5, 2007 on probabilities in connection with premiums; and Sept. 18, 2007 on holdbacks.). Even when both sides are amenable to a novel structure, time passes while the concepts are articulated, hashed out, reviewed, and refined.
Meanwhile, it feels as if the law department steadily looses leverage as it moves down the path with its desired firm.