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The Productivity Metric Litigation Finance Is Missing: Case Progress

The Productivity Metric Litigation Finance Is Missing: Case Progress

The following piece was contributed by Eric Schurke, CEO, North America at Moneypenny.

Litigation finance is an industry built around measurement. Funders scrutinize risk, duration, capital deployment, potential returns and portfolio performance, because understanding what creates or erodes value is fundamental to making good investment decisions.

But there is another form of value creation that is much harder to see on a spreadsheet: the progress created by the hundreds of conversations, emails and interactions that surround a matter.

A call is answered. An email is sent. A follow-up is logged. A message is passed to an investment manager. All of that looks like work being done, but the more useful question is whether any of it actually moved the matter forward.

That distinction between activity and progress is one I think more leaders should be paying attention to.

Busy doesn’t always mean productive

Every interaction creates work, but productive communication should also remove work somewhere else.

If a conversation gathers the missing information needed to progress an assessment, resolves a question from a law firm, arranges the right follow-up or gets an issue to the person capable of resolving it, it has created value.

If it simply results in another message, another email or another task being added to somebody’s list, it may have created activity without creating much progress at all.

That matters in litigation finance because senior legal and investment professionals are an expensive and finite resource. Their time is best spent applying judgment to complex matters, assessing risk and building relationships, rather than chasing information or dealing with routine requests that could have been resolved earlier.

So perhaps productivity shouldn’t simply be measured by how efficiently communications are handled. We should also ask how much unnecessary work those communications remove.

Think about what happened next

At Moneypenny, this is something we’ve thought about a great deal because answering the phone is only a small part of what a well-managed conversation can achieve.

Depending on the business and the interaction, that might mean capturing detailed information, qualifying an inquiry, arranging an appointment, updating a system, following up an outstanding action or ensuring a complex conversation reaches the right person with the right context.

For a litigation finance business, the specifics will obviously be different, but the principle is the same: the value isn’t simply in handling the interaction; it’s in what happens because it was handled well.

That changes the questions leaders should ask.

Rather than only looking at volumes, response times or the number of interactions completed, look at outcomes. Did we obtain the information required? Did we resolve the issue? Did we eliminate another round of follow-up? Did we protect someone’s time? Did we move the matter to its next meaningful stage? Those measures tell you far more about productivity.

AI should create progress, not just efficiency

This becomes particularly relevant as AI takes on a greater role in business communication.

There is understandable enthusiasm around what automation can do faster and at greater scale but simply automating activity doesn’t necessarily create value. If AI answers a question but leaves the person unsure what to do next or captures information that still needs to be manually re-entered or clarified, the business may have made one interaction faster while creating more work downstream.

The real opportunity is to use technology to remove friction: handling routine requests consistently, capturing and organizing information, supporting faster routing and completing straightforward actions where appropriate.

Then, when an interaction requires commercial judgment, sensitivity, negotiation or expertise, it should move seamlessly to a person who can provide it.

The objective isn’t to automate the greatest possible number of interactions. It’s to create the best possible outcome from each one.

Communication is part of operational performance

This way of thinking also changes where communication sits within the business. It stops being something that happens around the “real work” and becomes part of how efficiently that work gets done.

In litigation finance, where matters can be complex, involve multiple stakeholders and continue over long periods, there is considerable value in reducing unnecessary friction. One well-managed interaction can prevent several follow-ups, clarify responsibility, surface an issue earlier or simply give the right person the information they need to make a decision.

Multiply those small gains across an organization and they become significant. That’s why leaders should start treating case progress as a productivity lens.

Not another metric for the sake of another dashboard, but a simple discipline: when we communicate, are we creating momentum or merely moving information around?

From measuring work to measuring value

Businesses have spent years becoming better at measuring activity. Technology has made it possible to track almost everything: calls, emails, response times, tasks, tickets and workflows.

The next step is to become better at measuring what all that activity achieves.

For litigation funders, that means looking beyond whether an interaction happened and asking whether it helped a matter progress, protected valuable expertise, strengthened a relationship or removed work further down the line.

Because being busy and being productive are not the same thing.

And ultimately, the most valuable conversation isn’t necessarily the longest, the fastest or even the most complex. It’s the one that gets something done.

Eric Schurke is CEO, North America at Moneypenny, the world’s customer conversation experts. He works with legal firms, litigation funders, and professional services to transform how they manage and qualify inbound opportunities. Eric is passionate about helping organisations strengthen deal flow, improve first impressions, and deliver exceptional client experiences from the very first interaction.

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Commentary Argues Funding Disclosure Bills Would Weaken Small-Business Patent Enforcement

A new opinion piece defends third-party litigation funding as a precondition for small businesses and independent inventors being able to enforce their intellectual property rights, and argues that pending federal disclosure legislation would undercut them.

As reported by the Washington Examiner, the commentary is written by Kristen Osenga, chief policy counselor of the Inventors Defense Alliance and a professor of law at the University of Richmond School of Law. She frames funding as an access-to-justice question for the innovation economy rather than a question of litigation volume.

The piece points to two measures now before Congress: Representative Darrell Issa's Litigation Transparency Act and Senator Thom Tillis's Tackling Predatory Litigation Funding Act. Osenga argues that mandatory disclosure of funding arrangements would hand well-resourced defendants insight into a plaintiff's financial position and litigation strategy, giving them a means to outlast smaller opponents rather than resolve the merits.

Her economic case rests on the role small firms play in US innovation. Small businesses account for roughly 45% of US GDP, and smaller companies produce approximately 50% more patents per employee than large companies. Without outside capital, she contends, those inventors face infringement by parties who can afford to litigate indefinitely.

The commentary likens litigation funding to the contingency fee arrangement, a long-accepted mechanism for shifting cost risk away from claimants who cannot bear it. "The right to sue is only valuable if you can afford to exercise it," Osenga writes, casting the disclosure debate as one over who retains practical access to the courts.

Pogust Goodhead Asks High Court to Rule Client Committee Cannot Remove It From Mariana Dam Case

Pogust Goodhead has escalated its dispute over control of the multi-billion-pound Mariana dam group action against BHP, taking the matter to the High Court rather than accepting the claimant committee's decision to change firms.

As reported by Legal Futures, the firm has applied for declarations that the committee had no contractual authority to terminate its retainer, no authority to direct a change in legal representation, and no authority to prevent it from instructing Quinn Emanuel for the damages phase of the claim.

The committee, made up of 17 members whose identities are confidential, decided in early September to move the claim to Bailey Glasser International, a joint venture between a firm run by former Pogust Goodhead staff and the US firm Bailey & Glasser. Pogust Goodhead had announced in June that it would instruct Quinn Emanuel on damages.

In a statement, the firm said that clients "are being encouraged to walk away from an established litigation structure on the representation that they can simply move to another firm with no material consequences."

The timing raises the stakes considerably. A damages trial listed for 22 weeks is only months away, and the underlying claim has been built on an extensively financed litigation structure whose economics depend on the identity of the firm carrying it to trial. The application asks the court to determine, in effect, who holds the contractual right to control the running of one of the largest group actions in the English courts, and on what terms a claimant committee can override the arrangements that funded it.

Burford-Affiliated Investor Pursues $109M Claim Against Alberta Law Firm Over 2018 Funding Agreement

A Delaware investment vehicle closely affiliated with Burford Capital is pursuing a debt claim of roughly $109 million against Alberta lawyer Jeffrey Rath and his firm, Rath & Company, alleging default on a litigation funding agreement first entered into in 2018.

As reported by Global News, Diriba Investments LLC claims the firm defaulted two years ago on financing tied to First Nations and COVID-19 litigation, with the outstanding balance now standing at approximately $108.8 million plus interest and costs. Diriba acts as agent for co-funder Western Springs Investments LP, also a Delaware entity. A 2023 amendment expanded the agreement's scope to cover all claimant-side work at the firm, including First Nations treaty claims and litigation over COVID-19 restrictions.

The alleged breaches include failure to provide monthly reports, failure to keep the funders informed, failure to report or remit proceeds, non-disclosure of client terminations, and the granting of competing security to a separate Delaware entity, Vance SPV LLC. Diriba issued a default notice in November 2024 and, in late July 2026, served a formal demand alongside a notice of intention to enforce security under the Bankruptcy and Insolvency Act describing the firm as an "insolvent person."

The supporting affidavit was sworn by Paul Mysliwiec, Burford Capital's deputy general counsel, acting as Diriba's authorized representative. Burford did not respond to requests for comment, and Diriba's Calgary counsel declined to comment.

The claim runs alongside separate actions by the Tallcree and Sturgeon Lake First Nations alleging misappropriation of trust funds, a Mareva injunction freezing $8.5 million, and a court-appointed receiver. Diriba is seeking an expanded receivership mandate at a September 14 hearing in Calgary. The allegations have not been proven in court, and Rath denies wrongdoing.