"On the plains of Oklahoma, with a windshield sunset in your eyes like a watercolor painted sky, you'd think heavens doors have opened."
Fly Over States

Thursday, August 6, 2009

The Lawyer's Pay

Pearl, at less than 8 months, is officially as tall as Evelyn - perhaps a tad taller. If Jezebel were still here, Pearl would be towering over her by a good 2.5 inches. That just amazes me.

I was thinking about how much private lawyers cost, these days. They be expensive! Ethics rules generally do not allow lawyers to accept a contingency fee in domestic cases or criminal cases. By that, I mean domestic or criminal lawyers can't simply accept for their fee a portion of whatever monetary award is meted out. Or agree to waive their fee if they lose. Every state is different but this is a common rule.

Private criminal defense lawyers are the ones whose well heeled or well connected clients are mortgaging their homes (or their parents' homes) and selling their boats to come up with the fee, upfront. No private defense counsel with an ounce of sense is going to take on an iffy felony case without some assurances that he will be paid. Even if he wins, it is not like there is going to suddenly be a big pot of money sitting around to pay his lawyer. Criminal defense lawyers also aren't supposed to have agreements that guarantee their client will walk or they forfeit their fee. As a practical matter, it happens on a regular basis to criminal defense lawyers who don't get paid up front. But it is rarely the goal of a criminal defense lawyer.

I don't practice criminal law but it used to be common for a criminal defense lawyer to seek a continuance because "Mr. Green" was not available to testify. The Court would understand that the private criminal defense attorney was asking for the trial to be delayed because he had not yet been paid. The message was that if he was not paid, he would need to withdraw, leaving the client with no lawyer - which causes all kinds of judicial commotion.

Frequently, the Court would allow the trial to be delayed to give the lawyer time to get paid. This allowed the attorney to stay on the case so there was not an even further delay while they sorted out getting a new lawyer up to speed.

Having lawyers up to speed at the time of trial is a VERY big deal in criminal cases. The defendant has a twofold right to effective assistance of counsel and a speedy trial. Both are common grounds for appeal and no one wants a case to be thrown out on a technicality or force victims and other witnesses to have to go through another trial to clean up the problem. Or, god forbid - result in the conviction of an innocent person.

So it sounds seedier than it is. Criminal defense, done properly, is enormously expensive. If criminal defense lawyers don't get paid, they won't stay in the field. If they have to be replaced, the client's right to a speedy trial could be compromised. At the end of the day, the client is better off if he is given extra time to pay his lawyer - within reason. And the court is better off because it can avoid the inevitable appeals that would come about from defendants who will claim they lost their cases because they had to change attorneys on the eve of trial. Granting a continuance to allow the attorney to be paid is a small way to keep costs down for tax payers AND protects constitutional rights.

In contrast, a "tort" lawyer can take on a case in which they sue a company with no money down but with an agreement that "if" they win, the lawyer gets a certain amount, say, a third or something. A "tort" is civil misdeed where, if proven, a person can get money damages. The police aren't involved and jail is not on the table. In many big tort cases, contingency fee arrangements are the only way they could be brought since the client may be just some poor guy from the wrong side of the tracks with no money to pay a lawyer if he loses. By taking contingency cases, a lawyer is risking not getting paid, at all (if they lose), or she might win the litigation lottery if she gets a big settlement or verdict for her client.

Remember when O.J. "won" his criminal trial when he was accused of killing his ex wife and Richard Goldman? He won the criminal case but then the parents of Richard Goldman brought a wrongful death suit against him. Wrongful death is a tort. The family won that and, if they had a contingency fee, their attorney would get a share of the monetary award. Perfectly ethical in the eyes of most bars.

Tort cases are a lot easier to win than criminal cases because the standard of proof is far lower. You have to show something was "beyond a reasonable doubt" to win a criminal case. But you just have to show that something was proved by a "preponderance of the evidence" to win a civil case. "Preponderance of the evidence" is a mushy term that roughly means "more likely than not." The math-whizzes among us would say you just have to prove that there is a 51% chance that something happened. Or in the O.J. case, all the family had to prove was that there was a 51% chance that O.J. wrongfully killed their son.

FYI - When people talk about litigation reform, they are usually talking about reforming the rules governing tort cases - not criminal or domestic cases.

But to swing back to my particular field, I don't accept private clients so I just bill my time and submit it to the state. I get paid far less than private attorneys but I don't have to dun clients for money, either. Collecting owed fees is a thriving cottage industry. But parents who want to hire a domestic law attorney need to have significant financial resources to hire a good one. Many go without an attorney because they simply don't have the thousands of dollars even the simplest, most straight forward cases require. And since there isn't a constitutional right to a speedy trial or effective assistance of counsel in a civil suit, the court will generally move forward without looking back if a parent shows up for trial sans attorney.

So I finished up a case, today, with two young parents fighting over their toddler. He lived locally and she lived in another state. He is practically a bum, she works very hard. He filed the suit in this jurisdiction and she lived 800 miles away. She hired a local attorney who fought tooth and nail for her. The father sat back and just refused to do much - wouldn't show up for court, wouldn't answer discovery, just drove her around the bin by acting the way passive aggressive people do, especially the ones who are in court with no lawyer and who keep telling the judge that they didn't understand the law. Her lawyer filed motion after motion, we had multiple court appearances. She traveled to court at her expense, repeatedly. Her lawyer won everything he filed on her behalf but it was time consuming and so expensive that it made me cringe.

About six weeks before trial, the poor mother ran out of money. Her attorney withdrew and left her with a $15,000.00 legal bill. I saw it. She showed up at court today with a camo colored suitcase filled with assorted documents she got from her former attorney. There was a transformers sticker on the side of the suitcase. I couldn't make heads or tails of the documents because they'd been jammed in willy nilly. I didn't need the documents because I knew the facts. Additionally, I'd met with her former attorney and gone over the documents so I knew there was no smoking gun in there. And he billed her for the time we consulted. So did I, for that matter. Unfortunately, it was clear that she would not be able to optimally represent herself at trial. She was in way over her head. Imagine - a working class young woman who spent $15,000 to fight for custody of her child and who still had to show up for trial without an attorney. Something went wrong, somewhere.

Meanwhile, the dad showed up for the trial with a lawyer paid for by his girlfriend.

Odd place to be for a guardian ad litem. They ended up coming to an agreement that was not what she wanted and I am not entirely sure was the best outcome. That being said, I think everything will be fine with the child. And I think the dad's lawyer was more than fair to the mother in the way he advised the father. This was his 81 year old lawyer's last case before retiring and he'd seen enough and been around enough to be more interested in fairness and doing right by the kids than "winning at any cost."

I could have derailed the agreement and insisted we have a trial over the whole thing but I think the parents were close enough in ability that the agreement they reached was "good enough." I insisted on a few terms that provided the mother with far more visitation than is typical in this sort of situation - and the retiring lawyer for the father didn't bat an eyelash. Bless him.

I felt terrible for that mother sitting there forlornly holding the $15,000 legal bill after showing up to court without even an attorney. Moreover, she walked away without physical custody of her child. I discounted my guardian ad litem fee, just a bit, but I don't think it would make her feel any better. And she is never going to know I did it, anyway. So if I were honest, I suppose I hoped it would make ME feel better. But now, in all honesty, I kind of wish I had just kept the money because it wasn't enough to make a whit of difference to the parents, anyway.

How horrible is that?

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