Unless the case involves a life sentence or possibility of a death warrant, most attorneys do not include the cost of trial in their first retainer agreement for representation. This is because such a low percentage of cases actually proceed to a trial. From an ethical perspective, it probably would be unethical to have a client pay for something that is so unlikely to require legal services.
When the client does exercise his right to trial, especially a jury trial, in our experience the client is often shocked by the fee we quote. The client often says, “Oh, I never thought it would be so expensive.”
This article is meant to explain how the fee for a trial is computed to give the reader more comfort that the fee being charged is reasonable.
The fee for a trial is based on many factors, but one factor that is always taken into account is the length of time that trial is expected to take. The shortest jury trials usually last three to five days, including jury selection and jury deliberations. This is because in most courtrooms, most judges in criminal cases can only spend a maximum of two hours on trial before the lunch break and three hours on trial after the lunch break. The judge also may have to attend to detectives walking into court to seek warrants and defendants walking into court unannounced seeking to have their bench warrant recalled.
Moreover, before trial even starts, counsel must prepare thoroughly. This means the attorney must review every document, including every note, every e-mail, the police report, any videos and any recorded statement. This can take many hours, as inevitably, the attorney will use this review to brainstorm on motions in limine (a request in writing to the judge to exclude certain evidence, testimony or witnesses) proposed voir dire (questions to the jury panel while the jury is being selected) and to prepare the exhibit and witness list.
This review is perhaps the most valuable work that an attorney can perform for the client. When attorneys quote fees of $450 per hour or higher, most people scoff at such rates as ridiculous. When an attorney is preparing for trial, this fee is perhaps understated.
Preparing for trial can also include meetings with the client and other witnesses. It can also include meeting with the prosecutor to discuss stipulations as to the admissibility of evidence or stipulations as to certain evidence or witness testimony.
The attorney may also need to pay for subpoenaing witnesses to come to trial. This make not be a big expense, perhaps $300 to $500, but it also takes time in discussing the witness’ work schedules and whereabouts with the process server.
Sometimes, a private investigator can be hired on the eve of trial to look into certain witness’ backgrounds for impeachment purposes and such services can cost up to $1,500 per witness.
In many trials, it is necessary to prepare exhibits that help the jury understand the evidence. This may just be a power point presentation, but it can be quite time consuming.
Trial also invariably involves a great deal of waiting time in court, either to get started, to wait for a verdict, or to allow the jury to simply deliberate.
Underlying all of these costs is the gravity of trial. It is the single chance an attorney has to synthesize all the evidence, which the attorney and the client have had months to understand, into a simple, straightforward presentation that does not ignore the nuances of the evidence and that persuades the jury to agree with the defense point of view. This can be a very challenging thing to do, as the freedom of one’s client is the attorney’s responsibility.
At Greg Hill & Associates, Greg Hill often works 14 to 16 hours per day on just the case involved in trial. So a daily trial fee of $2,500 is not unreasonable for such commitment and in fact, based on his experience and skill, may be a bargain.
Practically speaking, too, there is the opportunity cost of trial, which may sound selfish. When the attorney is in trial, nothing else matters but the client, as he or she has every right to expect. This means that the attorney’s other 20, 30 or 40 additional clients are unattended and, if impatient or demanding, can become very upset when their phone calls go unreturned for hours, days or weeks. The attorney also cannot meet with new clients or do normal marketing, so there are tremendous financial consequences that reverberate for weeks or months after trial ends.
Consequently, one should be skeptical of any criminal defense attorney who is eager to go to trial. That attorney either has a poor grasp of the tremendous responsibility that trial truly is and what a responsible attorney must do, or is an unsuccessful attorney because he regularly disregards existing clients.
For more information about trial issues, please click on the following articles:
- Why Hire a Private Attorney? Why Shouldn’t One Use the Public Defender?
- What Is a Trial Tax?
- Is My Call from Jail to My Attorney Really Private?