Free Trials? A Dangerously Bad Idea

Summertime, and the blogging is easy. Especially when someone with a point of view like Carolyn Elefant, promoting the interest of new solos, hands over the keys to My Shingle to guest bloggers, whether to put content on the page or give new people the chance to offer new ideas.  But that doesn’t mean that such a well-established soapbox should be used to promote ideas that are just plain bad.

When Carolyn put out the call for guest bloggers, Jackson, Wyoming criminal defense lawyer Alex Freeburg answered with this post:

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.

Well, yeah.  Most criminal defense lawyers everywhere do this.  But Freeburg’s point is that he doesn’t, and you shouldn’t either.

I understand why other attorneys do this. Trial is different. It’s hard and takes you outside of your comfort zone.

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.

Well, not exactly. For some of us, trial is our comfort zone.  It’s the place where we feel our best, where we belong, but he’s entitled to feel differently about trial, though he really shouldn’t neglect his girlfriend at dinner. Just sayin’.

As a matter of economics, it makes sense.

And that’s more to the point.  Yet Freeburg offers four reasons not to charge for trial:

1, 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.

Clients would be much happier not paying a lawyer at all. Ever. For anything. That’s not exactly an epiphany. Paying a criminal defense lawyer isn’t quite as much fun as buying a flat screen TV or a new rims for the Chevy, but then, people don’t retain lawyers unless they need to.

But if the only way a client knows that you have their back is by foregoing your legal fee, then you’re doing something very wrong.  The quality and zeal of representation is what a criminal defense lawyer has to offer. Not cut rates.

2. 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.

Prosecutors are also aware of which criminal defense lawyers cut and run, and which will go to trial without a blink if need be.  If the primary stumbling block is financial, then the criminal defense lawyer has failed to properly manage his client. Any lawyer who sells out a client over money is scum, and has no business being a lawyer.  But try cases and prosecutors know.  Show that you have the guts to go to trial, and the chops to win, and they will frame their offers accordingly. And any prosecutor (or defense lawyer) which thinks it’s about money will soon learn the error of his assumption.

3. 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.

Or you could just tell potential clients that you work for free. Better still, pay them to take the case. Your flat fee isn’t simple; it’s simplistic.  Clients may want to spend less rather than more, but if a lawyer doesn’t value his representation, neither will the client. If you’re giving it away for free, then it’s worth what they paid.

4. 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.

Please keep your dry-heaving issues to yourself.  As of this writing, Freeburg says he’s tried a total of 25 cases to verdict before a jury, which is a solid showing.  But then, per his website, 24 of those cases were tried when he was a prosecutor.  It’s not the same.  Prosecutors do direct of cops.  Defense lawyers are all about cross. Completely different skills, and the defense doesn’t have its own army.

The unanswered question in Freeburg’s post is whether he overcharges on his initial retainer, or takes a financial beating on trial.  If the former, then he’s burning every client to create a trial war chest for the one who refuses to cop out.  If the latter, it’s a financially unsustainable model, at least if you plan to try more than one case in your career as a criminal defense lawyer.

There is no shame in getting paid for your representation, just as the landlord gets paid, the phone company gets paid and the kids like to eat (you’ll learn about that eventually, Alex, if you don’t piss off your girlfriend too much). Work hard. Earn it. But if your practice can’t survive financially, you aren’t helping anyone.

Getting the reputation of being the cheap lawyer in town may seem like a good marketing ploy, but it’s not quite the foundation for a successful practice. And if your practice isn’t sufficiently successful, then no amount of malarkey is going to pay for the groceries, not to mention the BMW.  Yes, you went through college and law school, paid the freight, gave away other opportunity, and you’re allowed to want a BMW.  But you have to earn it.

This isn’t a matter of a new, non-conforming idea that might be a “game-changer,” but an old idea that generations of criminal defense lawyers have found totally untenable.  And just because Carolyn’s taking some time off for the summer doesn’t mean that her soapbox should be used to promote ideas that will come back to bite new solos in the butt. New ideas can be good. It’s just that this one isn’t.


19 comments on “Free Trials? A Dangerously Bad Idea

  1. Bob

    No. 1 (“having the client’s back”) will often be in conflict with no. 5 (going to trial for the experience). A good attorney wants to give the client all the information he/she can provide in order to empower the client to make the essential decision of going to trial/or not. It’s for that decision that the attorney has the client’s back, and it’s on that decision that the attorney goes forth into battle (at whatever scale or purpose). Otherwise, the client seems to be no more than a means to an end for the attorney, and that’s already the essential problem with this and so many other professions.

    1. SHG Post author

      I didn’t read it as going to trial without regard to the client’s interests or approval. Clearly, trial (and everything else we do) is about the client’s interests, not the lawyer’s.

  2. Michael Yuri

    “The unanswered question in Freeburg’s post is whether he overcharges on his initial retainer, or takes a financial beating on trial.”

    And either way, it creates a strong incentive to pressure the client to plead out. The lawyer gets paid the same either way, and with a plea he avoids all the time and effort of trial.

    1. SHG Post author

      The financial incentives of criminal defense never really favor the defendant. Unfortunately, it ends up being a matter of trust and confidence, and that’s why our ethics matter so much.

  3. TM

    If he is approaching trial as a defense attorney the same way he did as a prosecutor, then I suppose it makes sense that he does not charge different pre-trial and trial rates. It doesn’t cost much to say “ok, and tell me what happened next” as your sole trial strategy.

    I can’t imagine that would get him very far. But it keeps costs down.

  4. Marc R

    I can see some cases where a flat fee would work. Suppose your potential client says “I’m not taking a plea no matter what! The feds can drop my case or they can get a jury to convict me.” Now the issues becomes: if the gov’t drops the case where you’ve spent far less time than a jury trial, then have you properly earned the fee? Some clients may say it’s worth it result-wise upfront, and your retainer would clearly have to state this is a flat fee and the client recognizes the value of a dropped case versus the uncertainty of a jury.

    I think as a competitive advantage the more tiers you have, the more the client saves and the more your time is equally compensated. Hypothetically:
    Jail visit and 1st appearance = $750
    Every status check/docket call = $250
    Depositions = $500 per witness
    Motion to dismiss/suppress = $1K
    Plea hearing = $500
    Trial = $2K

    The numbers are made up (and very low) and it’s pretty crude to a practitioner but the client has a lot of autonomy in this setup.

    1. SHG Post author

      Putting aside the work breakdown and numbers, which (as you realize) are crude to be kind, there are two other factors that you haven’t incorporated into your concept. First, defendants need (want, but more, need) to know what things will cost so they can figure out if they can afford the representation. Most aren’t well to do, and too many variable leave too many unknowns.

      Second, criminal defendants aren’t always the best payors. A breakdown is fine, provided funds are paid up front and held in escrow, but to charge in small bits is asking for problems. When a fee comes due, and a defendant can’t pay it, it causes a massive breakdown in the relationship, which invariably inures to the defendant’s detriment. Nobody benefits. Experience teaches that we don’t beg for problems, as there are more than enough already.

      1. Marc R

        That last point is crucial. The biggest gripe is approaching client payment. It’s such an awkward discussion and nobody wants to be their client’s creditor…it wastes time, it’s uncomfortable, etc. I’ve always been upfront (ha) and simply say “This is security for you to know that I’m retained and you don’t have to worry about me being too busy or otherwise occupied with another matter.”

        Of course, in this field some clients need a payment plan. If you have a trial scheduled far out in advance I don’t think it’s too much of a problem to have a weekly/monthly payment plan with the understanding if they miss one payment you will withdraw from the case with no refund. Some clients just don’t have the money on hand but they will pay. Others intend to pay, but they just can’t, and as much as it sucks having to withdraw for financial reasons it’s pretty common.

        But obviously payment upfront deposited into trust and deducted as earned is ideal. And I think payment for trial should be separate as you spend maybe 20% of time time pre-trial (motions, depos, investigations, discovery etc.) that you would preparing for a jury.

        1. SHG Post author

          You’ve gone into dangerous turf with payment plans, which goes far afield of this post. I would strongly recommend against payment plans, and in some jurisdictions, nonrefundable retainers are unethical. I’m pretty sure I’ve discussed this before, and this isn’t the place to discuss it again. Suffice to say that I do not accept payment plans, will never accept payment plans, and think it’s an ethical and financial disaster to accept payment plans.

          1. Marc R

            Without keeping this off topic, then would payment for trial be upfront and just returned if they plea/charges are dropped? Or is it two separate payments. In my jurisdiction, most lawyers seem to have payment plans. I’ve never had to withdraw for financial reasons but you routinely see motion calendars filled with the judge asking if the reason for withdrawal is financial, the lawyer affirming it is, then the judge making a comment about “well nobody should have to work for free.” I’m not sure what amounts are refunded but I assumed none (if the lawyer did the work up to that point).

            1. SHG Post author

              Judge: Ready for trial, counselor?
              Defense Lawyer: No, your Honor. I’m trying to find a witness. Mr. Green.
              Judge: How long will you need?

              These are old stories, Marc. Old, old stories. Lawyers have been dealing with these problems long before you (or I) got here.

              Some lawyers take payment plans out of desperation. Some do it out of kindness, and never look back if the fee isn’t paid. But the ones who expect, if not need, payment and don’t get it find out what becomes of their lawyer/client relationship. It’s never good.

  5. Charlesmorrison

    Okay, I read it twice and I’m still confused about point number 2. So he tells the prosecutor that his fee includes trial? Or, because he has taken all of one case to trial on the defense side the prosecutors now know this? I fail to see how the leverage is obtained by the confidential fee agreement. And how is the state to know “this guy doesn’t care what he’s paid, he’ll take it to the box,” unless someone tells them.

    I’m not saying this couldn’t be leverage, but one isolated case doesn’t prove the theory true, in my mind.

    1. SHG Post author

      My understanding is that he gets a rep of not charging a trial fee, so prosecutors know that if he says he’s going to trial, there won’t be a Mr. Green problem that will force a plea. Of course, if he goes to trial and gets paid, because his clients know that he’s worth the fee, then prosecutors will know that as well. Plus, he gets paid for a trial, which means he’s got the ability to pay for investigators, experts, exhibits, etc., all of which prosecutors will similarly figure out. It’s not a good plan.

  6. John Jenkins

    This whole idea puzzles me because literally every CDL I know has a simple system. After evaluating the case, he or she says $X up through trial and $Y if we go to trial (much like a PI attorney’s percentage of the recovery goes up if the case goes to trial:around here the numbers are 25%/40%).

    Mr. Freeburg’s arguments are specious, but make you wonder whether he has ever read anything on the subject? Has he talked to any of the
    white-haired lions in cheap suits (intentionally) who have tried more cases than he has read about? There is often a good reason that everyone in a particular community approaches a problem in a certain way and asking about it first generally saves one from embarrassment (and possible bankruptcy).

    1. SHG Post author

      New is cool. Learning from experience is not. Because nobody tried anything new, or thought anything through, before the new guy showed up.

      1. Nigel Declan

        With an attitude like that, Scott, no wonder your “Legal Rebel” status got revoked.

  7. Alex Freeburg

    Hi Scott –

    I appreciate your linking to my post and vetting the idea of no trial fee. I agree that the idea has a lot of flaws, but at this point, for where I am at in my practice, I think it works for me. Just to clarify, I charge what other attorneys charge to take the case to the pretrial hearing, and then don’t charge extra to go beyond the pretrial hearing, which is what other attorneys do.

    You talk about scummy attorneys that plead their clients out because they won’t pay the fee. I’ve only worked in three rural markets, but from what I’ve seen there are a fair number of criminal defense attorneys that do just that. Over the last 4 years, I haven’t seen that many private attorneys take a case to trial, period. The prosecutor’s office was very aware of one attorney with a volume practice of low-income clients on a payment plan. Every one of his clients pled guilty or took a deferred prosecution agreement, often after months of continuances. It was depressing to negotiate with him.

    Your point about criminal defense attorneys being far, far better at cross-examination than prosecutors is spot on. Cross is a special skill that must be honed in evidentiary hearings and cross examinations. I don’t think I’m especially good at it (yet), but I am better than I would be without my trial experience on the prosecutor’s side.

    My point about having nerves before trial is that younger attorneys should do things that take them out of their comfort zone because that is where growth happens. Yes, we’re professionals with valuable skills that should always be paid a fair wage in proportion to our work, but as you know with criminal defendants, that isn’t always realistic. In the hypothetical scenario where the young attorney declines a good trial because he isn’t going to get a fee, I think he is giving up a valuable experience and making a mistake.

    I think the legal system works best when defense attorneys regularly put the Court and the prosecutor’s office through the paces of trial. In some small communities, there is a clubby atmosphere where trial doesn’t happen all that often, partly because few defendants can afford the standard trial fees and few attorneys enjoy the process. A new attorney can shake something up in a positive way. (Disclaimer: not commenting on any specific legal market).

    I get the sense from some of your other posts that you’re skeptical of young attorneys rushing out there to get published on the internet to game SEO or become internet famous. I definitely didn’t want to publish another listicle telling other attorneys to go to networking events and carry business cards. I thought that publishing a controversial idea would be more interesting. On the other hand, it’s possible that I went too far in terms of ginning up controversy with a provocative argument. Perhaps a mediative discussion of ethics, fees, criminal defense, small communities, and young attorneys would have been better.

    The core hurdle for me is that I wouldn’t be able to tell a broke client with a good case that he had to pay a trial fee or I was going to withdraw. (I’m not sure the local judges would let me withdraw, either.) Maybe if I was more selective about my cases, I’d avoid that problem. But at the same time, I need the work and would rather have a reputation for being a trial attorney than a big bankroll. Perhaps I’ve set up a false dichotomy for myself–I certainly think it’s a false dichotomy for the best attorney in a big city market–but for me, at this point in my career, in my market, I think it’s a reasonable operating plan.

    My expectation is that in a couple years I’ll move toward the tiered fee model, where there is a trial fee. I plan on doing that once I’ve “earned my stripes” in trial in Wyoming and Eastern Idaho. I was a little hesitant to put this idea out there on the internet and associate it with my name forever, but I figured no one else cares about what I write as much as I do.

    Thanks for taking the time to consider my post. I appreciate it,


    1. SHG Post author

      Your explanation here demonstrates that you possess a far more sophisticated understanding of the problems and issue in your proposal than appeared in your original post. I’m very glad to see it. Best of luck, Alex, and I hope you come the point in your practice where you can charge what you’re worth (and be worth every penny you charge) very soon.

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