Usually when someone is confronted with the prospect of hiring a criminal defense lawyer they are under a lot of stress. In addition to the stress arising from the prospect of being convicted and possibly going to jail, the potential client is confronting financial stress. Not only must the potential often expend funds to make bail, he has to expend money to hire a lawyer.
Naturally when the client is meeting with the prospective lawyer, he wants to hear some good news. The last thing he wants to hear about is another expense in addition to making bail and hiring a lawyer. Knowing this, many lawyers are reluctant to tell the client that he should be prepared to expend money for bail, the attorney, and possibly investigators and expert witnesses. Sometimes, to avoid overwhelming the potential client, the attorney may suggest that the client pay a single flat fee that will encompass all expenses. The potential client may jump at this offer feeling confident that no matter what happens if he pays some specified amount his legal expenses are covered.
The problem with this scenario is the client must then count on his lawyer putting his client’s interest ahead of his own interest. For example, imagine a woman is accused of shaking their baby so hard that the baby has suffered irreparable brain damage. The lawyer requests a $25,000 flat fee. The potential client breathes a sigh of relief knowing that if she depletes her bank account she can pay this fee.
Six months later the cases approaches trial. The lawyer feels that his client will make a good witness for herself and believes an expert witness would be helpful, but not essential, to his case. After making inquiries he determines the expert will cost $7500. Now the lawyer has to decide, in effect, to take $7500 out of his fee to hire the expert or try the case without the expert and keep the entire fee. The client does not want the lawyer weighing the value of having the expert testify against his own pocketbook. The bottom line is the client needs to be the one weighing the value of the expert testimony against her own pocketbook.
At Broden & Mickelsen we advise that fee agreements provide that expenses for expert witnesses and investigators be kept separate from the attorney’s fee.