Four Reasons Why This Trial Lawyer Doesn’t Charge an Extra “Trial Fee”
Updated September 1, 2022
This post is part of the MyShingle Solos summer series which ran between June 17 and July 3, 2014.
Conventional wisdom on flat fees suggests that attorneys bill in two parts: (a) one flat fee to cover pre-trial activities and potential disposition of the case and (b) a second flat fee should the case goes to trial. But here’s why MyShingle Guest Blogger Alex Freeburg doesn’t take that approach as he explains in a guest column.
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
Alex Freeburg is a criminal defense attorney and owner of Freeburg Law, LLC in Jackson, Wyoming who has taken more than two dozen cases to trial.
Then either you’re loosing money or your flat-fees are high enough to account for the potential trial. I feel like the trial fee gives the client the ability to get a lower-cost defense, like an a la carte pricing scheme. That day at trial, while worth something in experience, is a time suck from my other cases. Particularly since I also do billable work. So I’m either quoting them a cost upfront which potentially covers a day-long (or the unforgiving multi-day) trial or I’m giving them that option so that I don’t price quote them out the door.
“I am a criminal defense attorney and I don’t charge a trial fee.” Never mind that this characterization of a lawyer’s fee schedule is insulting, implying the lawyer is penalizing the client for going to trial. A flat fee is ordinarily nonrefundable. It it takes 100 hours to do the job, the fee is the same if it took only 10 hours. All other things being equal, if you are charging a client $5000 to take a misdemeanor case to trial, that is, perhaps, a fair fee. If you are charging that same $5000 and settle the case pre-trial, you have significantly overcharged. Because most cases do settle without trial, this means you are doing this to the vast majority of your clients. So how is it a better thing for your clients that you “don’t charge a trial fee.”?
I hear what you’re saying Philip. I try to charge about what it would take to do the case to the pretrial point. Then if I end up trying the case, I lose my shirt in terms of my time. But I see it as part of providing a good service to my clients. I try to explain that this is non-economic, but perhaps I didn’t make that clear enough.
As far as whether a “trial fee” is an insulting term, that’s what I’ve heard it called by the attorneys who charge it.
Joe – that practice makes sense. There are good reasons that everyone else does it that way. I try to clarify above that I don’t really see this practice as economic. However, for where I am at in my practice/life, it fits. The occasional trial I lose money on.
While I primarily practice in family court, I have handled many criminal jury trials in the past. I never found a satisfactory way to charge in either criminal trials or domestic trials. Given my druthers, I would charge $1,000 per hour for telephone calls, $500 per hour for mediation, $250 per hour for office work other than trial preparation, $100 per hour for trial preparation, with me paying the client $100 per hour for the actual trial. Trials are the most fun that a lawyer can have after appellate arguments before a “hot court.”
What concerns me is that as lawyers we have priced ourselves out of the market. When I started practice, many relatively poor people were able to pay fees for murder, rape, and armed robbery cases. There were no pro se divorces because everyone could afford a lawyer. Now even the middle class has difficulty paying lawyer’s fees with the result that most criminal defendants are represented by public defenders and many divorces are resolved with two pro se litigants. Not only are the pro se litigants getting screwed but so is the legal profession.
Thomas –
I’d love to see the fee agreement where the attorney charges $1000/hr for a phone call that feels like a waste of time and $50/hr for a sly cross examination that catches the other side in a lie. It would be awesome to set the fee in proportion to the fun, with fun being defined as the juicy parts of lawyering.
I agree it’s a shame that the cost structure in the legal profession and court system is reducing the amount of time spent in trial and increasing the bills to middle class consumers. I also think that perhaps those glory days lacked some of the procedural safeguards that we currently enjoy–such as good faith, voluminous discovery and extended case law on mistrials.
Hey anybody that comes across this post:
Scott over at the Simple Justice blog dissected all the flaws in this idea. I also post a comment (number 19) to respond to the flaws and better explain my thinking. I think that discussion is even better than original post.
Check it out here: http://blog.simplejustice.us/2014/06/25/free-trials-a-dangerously-bad-idea/