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.
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.