This post is part of the MyShingle Solos summer series which will run between June 17 and July 3, 2014.
I am a criminal defense attorney and I don’t charge a trial fee. Most attorneys in my area do. The standard procedure is that the client pays a flat fee, and if the case goes beyond the pretrial conference, then the client pays a second flat fee for the privilege of having their attorney try the case.
I understand why other attorneys do this. Trial is different. It’s hard and takes you outside of your comfort zone. As a matter of economics, it makes sense. If your flat fee criminal defense practice is predicated on each case taking X amount of work, competent trial preparation is likely 5X that much work, or more. Along with the extra work, there are the mental costs of trial. Personally, I don’t sleep well during the week before trial. I’m a terrible dinner companion–my conversation is either about the themes I plan to explore in the trial, or monosyllabic responses that let my girlfriend know that I’m not paying attention. Trial is a stressful, public contest that showcases your skill and faults to the legal community.
And yet, if trial is five times as much work as you initially budgeted for, and far more stressful than the workaday job of drafting suppression motions and grinding out plea deals, why not charge extra for it?
- Your clients will know that you have their back. Defendants have their own budgets, and for many of them, hiring you is all the money they can scrape together. They don’t want to be forced to choose between their defense and their financial obligations to their families. When a client leaves thinking that they would have won at trial, but had to plead guilty because they couldn’t afford justice, you have a potentially very bitter referral source.
- You may get a better deal from the prosecutor. One dynamic that I have encountered, and it’s troubling, but I was a prosecutor so I get to say this, is that prosecutors are very aware that most defense attorneys charge their clients a trial fee and that most clients will not want to pay that trial fee. Therefore, prosecutors will negotiate with you knowing that most likely you will fold your hand and your client will plead guilty to a worse deal. The attorneys that regularly make the State prove their case beyond a reasonable doubt will over time get better deals.
- It is a small competitive advantage when meeting a potential client. When a potential client calls me and gets one price and then talks to another attorney and gets a two prices, one for negotiating and one for trial, it’s a reason for them to choose me over the other attorney. My flat fee is simple; the other attorney’s fee is a complicated. It’s a red flag for the client.
- You actually want to go to trial. This is the big one. There is no substitute for jury trial experience. Mock trials, CLEs, war stories from senior partners. None of that cuts the mustard if you want to call yourself a trial attorney. You must try cases in front of juries and dry heave in the courthouse bathroom during breaks. You will learn more in a shorter amount of time about the law and your capabilities as an attorney in trial than through any other manner.
Furthermore, if you do well, you will be noticed. Courtrooms are the town square of the legal community. If you want to impress a senior attorney, establish your bona fides, or just have something useful to talk about at the next bar function, try cases.
The American jury trial system is a unique, beautiful exercise in citizenship and self-government. It may be romantic, idealistic and non-economic to go to trial, but as lawyers our greatest privilege, power and responsibility is the right to force a case to trial: to make the government prove its claims before a group of citizens.
So while an attorney should never take a case to trial just for “the experience,” there is no reason to charge a trial fee to your client.
It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat. -Theodore Roosevelt