Gideon asked, The right to a jury trial: Can you afford it?.  This is one of the most painful questions, because it presents the inherent conflict between our desire to serve our clients and the fact that criminal defense lawyers, like everyone else, earn our living this way. 

The simple answer is that many clients scramble to make the retainer, generally a flat fee to pay for representation up to a fixed point in the case.  The practice of breaking up the fee is usually a sound one, since most cases don’t go to trial and it would improper to charge for services that are neither rendered nor needed.  But at the same time, my practice is to include the costs for trial in my retainer agreement, both to alert the client as to what he has to look forward to as well as give him the information up front so that he can appreciate the costs associated with his choices.  This can, and does, scare away some clients.  Honesty can often do that, but it’s my way and I’m sticking with it.

But it would be a lie to say that the cost of going to trial, particularly when considered in light of the fact that there is never a guarantee of a favorable outcome after trial, enters into the defendant’s decision-making process.  It has to.  It is a huge factor.  It sucks, but there’s no way to ignore it.

There have been times when a client, or his wife more likely, will look me in the eye with a steely stare and tell me, “you better win for all this money we’re paying you.”  This is the look that I hate, because I will not lie about it.  You pay for my time, experience and effort.  There are no guarantees.  I won’t be baited into lying about trials.  They are always a roll of the dice, no matter how good, smart or caring you are. 

Trials are expensive.  Not the trials that happen in an afternoon about whether you were driving 72 in a 55 mile zone, but trials where you could end up convicted of murder and spend the rest of your life in prison.  These trial take substantial preparation, and noting, but nothing, else happens when you are on trial except the trial.  They become your entire world. 

Some are over in a week or two.  Others go on for months.  That means that there will months when you don’t take on any new cases, don’t work on the cases you already have, and pray that your other clients will understand that you will show them the same undivided devotion when it’s their turn to go to trial.  But there is a cost associated with this dedication.  I am not a public defender.  I do not receive the same paycheck whether I’m on trial with you or doing arraignments.  This is how I earn my living.

I would like to be so bold as to say that I feel no guilt about the trial fee.  That wouldn’t be quite true either.  I realize that for normal people, the cost of a trial seems astronomical.  Sure, corporations may not blink at tossing a mill or two into a trial, but real people don’t have that to burn.  This money comes out of the pockets, their homes, their children’s inheritance.  It may be the difference between a reasonably comfortable life and putting themselves into debt.  It has a big impact.

Is that the lawyer’s fault?  Perhaps, since if the lawyer would only cut them a break, they wouldn’t have to pay it.  But then, the lawyer too is entitled to earn a living.  It’s not his fault that there’s a prosecution requiring an attorney.  He’s just a person delivering the services needed by the client.  He works for a living.  There’s no sin in getting paid for your services.

But these arguments dance around Gid’s primary question, which is whether people can afford a trial, as guaranteed them by the Constitution, when it comes with a price tag that they can’t, or won’t, pay.  Implicit is the fact that these may be wholly innocent people, who are unable to afford the tab.  The alternative is the guilty plea by the innocent, a commonplace reality that judges refuse to accept since it reduces the system to a farce.  We wouldn’t want that, now would we.

It is not entirely uncommon to find that a defendant shows up for trial with no money in his pockets.  He’s paid his way up to that point, but when time comes for trial, the cupboard is bare.  He gives you that sheepish face, his feet shuffling, and then he says the magic words, “but I ain’t got no money.”  This is the criminal defense lawyers’ nightmare.  When we take our fee up front, it is not (as some cynics would have it) because we want to get paid before we screw the client, but because we never want to find ourselves in this position.  Most people don’t mean to screw the lawyer, it just happens that way.  Stuff happens, despite the best of intentions.  But the lawyer gets screwed nonetheless.

There are so many problems that arise from the client’s inability to pay the trial fee.  The cost of experts cannot be paid.  Investigators are gone.  Exhibits cannot be produced.  Research fees can’t be paid.  These are all for the clients benefit, and they all cost money.  The unfortunate truth is that the lawyer can’t finance the client, and if the client has put himself into a bind by committing to something that he is unable to do, then everything collapses around him.  This is a disaster for all involved.  After having lived this experience a few times, I have sworn to never be in the position again where this can happen.  Again, some potential clients view this as harsh, but that’s because they refuse to see the potential for disaster down the line.  As a lawyer, I cannot indulge in such fantasies.  I have an obligation, and I also have bills to pay. 

You really nailed the conundrum on this one Gid.  I wish I had a better answer.