The Value of Legal Services in a Criminal Case
Timing truly is everything…
What most lawyers already know but need to be reminded routinely (present company included) is that the “perceived†value of the services we perform for our clients immediately begins to decline as soon as we perform them. Remember, this is the “perceived†value, not the true value or the agreed upon amount of a fee.
For example, on the front-end, that flat fee you quoted to represent an in-custody client for the purposes of seeking a bond might seem extremely fair and reasonable in light of the prospects of regaining his personal liberty. After the fact, however, if he takes the perspective of merely attributing a value to his belief of the actual time and expenses involved in securing a signed bond order on his behalf (possibly even a consent bond), he might not have the same “perception†of the value of your services. This is the old value versus cost debate. And, the only difference is where on the timeline the client makes his value assessment.
This isn’t a unique phenomenon to the criminal defense profession. Realtors understand this concept very well. That’s why they lock up their commission agreements right up front. A six-percent commission to a seller with no prospective purchasers seems absolutely reasonable. That very same seller may get heartburn when a buyer is located and he realizes that the same six percent equates to $18,000 (or more). Personal injury attorneys that operate with contingency fee arrangements also understand and employ this concept well.
As criminal defense practitioners, we’ve all heard comments like “you just made a few phone calls…â€, “you only met with me once or twice…â€, “we never even went to court….â€, “of course they dismissed my charges, I’m innocent…â€, and so on. We all wish it were that simple. And, let’s not forget the seemingly simple cases that require ten trips to the jail, dozens of phone calls, multiple visits to the prosecutor’s office, preparation for a hearing, etc. You know the drill…
What’s the moral of this story? You already knew it. Quote those fees up front and get them paid. If you agree to accept part of your fee after you provide the service, you are usually agreeing to renegotiate your final fees in the matter.
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March 8th, 2006 at 12:41 am
Good post. Thanks for the permalink. Will get your blog added to my blogroll sometime soon.
March 8th, 2006 at 9:30 am
I would add one thing to that. Get it in writing with a fee agreement. If you don’t, you’re asking for trouble.
March 10th, 2006 at 5:29 pm
I think it helps to itemize everything you are prepared to do for your client so that they feel like they know what they are getting up front. If you itemize a worst case scenario, including hearings, motions, meetings, calendar calls, witness interviews, preparation and trial, it is easy to show how you may spend 80+ hours on the case. Then agree to halve the amount (and therefore the risk) with your client. You will still end up with a fee sufficient to cover your work in most cases. Your client will understand that you are both accepting a little risk by agreeing to a fixed, up-front fee. He has overpaid if it is a quick case, and he underpays if it is a long one. It creates an incentive for you to be fast and efficient, which clients usually like.
Another angle is to argue that your services are like health insurance: you pay for it but hope you don’t need it. Like a doctor in his HMO, he is paying to have your skills available if needed, but the less he needs you the better for him.
June 18th, 2006 at 10:50 am
While clients will frequently reevaluate flat fees or contingent fees after the end of their case, this is largely because the lawyer failed to adequately explain to the client why the fee is constructed in this manner. When it comes time for a criminal lawyer to tell a prospective client what his or her fee will be, the lawyer should always explain, nicely (not offensively or defensively), how that fee is derived and why the fee is a flat fee no matter how much time is spent on the case even if the client does not object. For some reason, trial lawyers are able to communicate effectively to a jury but frequently lose sight of this when communicating with their clients or prospective clients.
I explain, nicely, to my clients that personal injury lawyers in New York are allowed to charge a contingent fee of one third because it allows lower income people as well as high income people to have access to the same lawyers; because it allows everyone to have access to a lawyer because most clients would not be able to afford a lawyer if they had to pay the legal fee upfront; because we have to wait two or three years to get paid; because some cases require substantially more work than others and we don’t always know how much work a case will require; because we have to invest money into each case for expenses and are only paid back two thirds of the expenses at the end of the case; because this fee arrangement allows us to take cases which could lose; and because we take that risk so the client will not have to suffer twice. After providing this explanation, my clients have always understood and no longer objected.
Philip L. Franckel, Esq.
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