Last week, following Mark Bennett’s lead, I wrote about the emergency phone calls from potential clients, who then go off to the low-rent lawyers after having survived their emergency on the cuff. That’s how some folks try to beat the lawyer on the front end. Today, we talk about the back end efforts.
To preface this post, this is not about Gideon (the case, not the guy from A Public Defender), or pro or low bono, which is a function of attorney choice, not the unilateral fiat of the client. The private criminal defense bar is comprised of lawyers who earn a living by representing people accused of crimes. We don’t get a paycheck from the state or federal government. We work for a living.
The nature of what we do presents some challenges to the typical lawyer business plan. Criminal defense lawyers tend to set a substantial retainer up front. If we’re not paid up front, we end up not being paid. Clients love to ask, “don’t you trust me?” Well, no. It’s not a matter of trust, it’s a matter of business. While there may be clients for whom we have worked so many times that fees are no longer an issue, experience is overwhelmingly clear that absent the initial retainer, getting paid is a problem. Clients may deliberately chose not to pay, but more often they make overly optimistic promises that they simply can’t fulfill.
Things happen. The money gets spent, or seized, or simply disappears. They come into the office, with their heads hung low, sheepishly explaining how they just don’t have the money to pay and asking for more time or greater indulgence. When pushed, they lapse into the “you only care about money” speech, as if they sell heroin to children because they’re great humanitarians.
But the real problems happens later. Most legitimate lawyers try to charge only for the services they believe to be necessary, and cut the client a break as to unforeseen problems or subsequent proceedings. Most significant is the trial fee. Since most cases do not go to trial, and trial is a very involved and time-consuming proposition, we do not include trial in the initial calculus. We will explain up front what the trial will cost, or how the fee is set, but we don’t demand or expect payment for trial at the start of a case. There’s the rub.
When it becomes clear that a case is going to be tried, then the trial fee kicks in. That’s when the client and lawyer can run into a serious rift in the relationship. The client has already paid a significant amount of money, and wants a return on his investment in you. At the same time, the lawyer has made a commitment to the client and the court to see the case through to its conclusion. But the lawyer’s fee remains outstanding, and as noted above, we work for a living.
As we prepare for trial, this is the time when the relationship between lawyer and client needs to be at its strongest. But when there is a fee unpaid, and a client who doesn’t want to hear from the lawyer because he or she knows that there’s money due and he either can’t or won’t pay it, the lawyer cannot do his job properly. We need cooperation to prepare properly.
On the flip side, lawyers are disinclined to put in the time on behalf of a client who is in the process of beating them out of their fee. Once again, it’s not that the lawyer doesn’t want to win. It’s that the lawyer works for a living. Where would you spend you time? With the guy who’s paying you or the guy who’s not?
In the old days, when the client refused to pay the trial fee, we used to tell the judge that we weren’t ready for trial because we were waiting to hear from our witness, “Mr. Green.” Almost every case had a witness named “Mr. Green” back then. Not anymore. Courts have standards and practices these days, and they aren’t about to adjourn cases for the benefit of defense lawyers, only to have the administrative judge chew them out. Nor do they care whether we get paid. Of course, that’s coming back to haunt the judges in New York, as they stump for support for a pay raise of their own.
So on the back end, the trial fee becomes a serious problem for everyone involved. The lawyer is put in the position of working for free, and for a client for whom he has developed a certain degree of antipathy. The client hides from his creditor, the lawyer, thus making the preparation that is going to get him the best chance for a “W” impossible. It’s a lose-lose situation. And it happens regularly.
To preface this post, this is not about Gideon (the case, not the guy from A Public Defender), or pro or low bono, which is a function of attorney choice, not the unilateral fiat of the client. The private criminal defense bar is comprised of lawyers who earn a living by representing people accused of crimes. We don’t get a paycheck from the state or federal government. We work for a living.
The nature of what we do presents some challenges to the typical lawyer business plan. Criminal defense lawyers tend to set a substantial retainer up front. If we’re not paid up front, we end up not being paid. Clients love to ask, “don’t you trust me?” Well, no. It’s not a matter of trust, it’s a matter of business. While there may be clients for whom we have worked so many times that fees are no longer an issue, experience is overwhelmingly clear that absent the initial retainer, getting paid is a problem. Clients may deliberately chose not to pay, but more often they make overly optimistic promises that they simply can’t fulfill.
Things happen. The money gets spent, or seized, or simply disappears. They come into the office, with their heads hung low, sheepishly explaining how they just don’t have the money to pay and asking for more time or greater indulgence. When pushed, they lapse into the “you only care about money” speech, as if they sell heroin to children because they’re great humanitarians.
But the real problems happens later. Most legitimate lawyers try to charge only for the services they believe to be necessary, and cut the client a break as to unforeseen problems or subsequent proceedings. Most significant is the trial fee. Since most cases do not go to trial, and trial is a very involved and time-consuming proposition, we do not include trial in the initial calculus. We will explain up front what the trial will cost, or how the fee is set, but we don’t demand or expect payment for trial at the start of a case. There’s the rub.
When it becomes clear that a case is going to be tried, then the trial fee kicks in. That’s when the client and lawyer can run into a serious rift in the relationship. The client has already paid a significant amount of money, and wants a return on his investment in you. At the same time, the lawyer has made a commitment to the client and the court to see the case through to its conclusion. But the lawyer’s fee remains outstanding, and as noted above, we work for a living.
As we prepare for trial, this is the time when the relationship between lawyer and client needs to be at its strongest. But when there is a fee unpaid, and a client who doesn’t want to hear from the lawyer because he or she knows that there’s money due and he either can’t or won’t pay it, the lawyer cannot do his job properly. We need cooperation to prepare properly.
On the flip side, lawyers are disinclined to put in the time on behalf of a client who is in the process of beating them out of their fee. Once again, it’s not that the lawyer doesn’t want to win. It’s that the lawyer works for a living. Where would you spend you time? With the guy who’s paying you or the guy who’s not?
In the old days, when the client refused to pay the trial fee, we used to tell the judge that we weren’t ready for trial because we were waiting to hear from our witness, “Mr. Green.” Almost every case had a witness named “Mr. Green” back then. Not anymore. Courts have standards and practices these days, and they aren’t about to adjourn cases for the benefit of defense lawyers, only to have the administrative judge chew them out. Nor do they care whether we get paid. Of course, that’s coming back to haunt the judges in New York, as they stump for support for a pay raise of their own.
So on the back end, the trial fee becomes a serious problem for everyone involved. The lawyer is put in the position of working for free, and for a client for whom he has developed a certain degree of antipathy. The client hides from his creditor, the lawyer, thus making the preparation that is going to get him the best chance for a “W” impossible. It’s a lose-lose situation. And it happens regularly.
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Lawyer fees are outrageous. Most people live pay day to pay day and simply can’t afford to pay them. You may be speaking drug dealers and thieves and I can’t speak to that. But for the rest of us, think about charging less.
Carolyn,
You can’t stop there! Tell us what you’re talking about. I would really like to hear from you about what you, as a client, think. But you need to give the details or we won’t know what you’re talking about.
SHG
I’ve learned to solve the problem of the missing trial fee by not charging a trial fee. Instead I charge a single fee, payable early in the representation; I estimate the likelihood of a trial and set the fee accordingly. The client doesn’t pay more if we go to trial, and doesn’t pay less if the government dismisses when it sees us march into court on the first day. When he hires me, he is is essentially buying trial insurance.
What Would You Do If . . . ?
Bryan, Texas criminal defense lawyer Stephen Gustitis wrote last week about The Seeds we Sow, pointing out that “we lawyers have it pretty good.”Indeed. This is something I think about often. Consider . . .What would you do if you went out to start your c