This week, I am going to deal with costs, lawyers and odds.
There is no easy way to put
this: fighting an indictment, whether you are innocent or guilty will cost you
money. Unless you decide to go with a public defender, this means you will
likely be spending money, and a lot of it, on a lawyer. Some lawyers charge by
the hour and some charge a flat fee. It is important to note that whether your
lawyer charges by the hour or charges a flat fee, the cost of actually going to
trial will always be more than the cost of taking a plea. Preparing for trial
is extremely intensive. Aside for setting aside the time needed for a trial
which can range from days to months, your lawyer will need to prepare for
trial. This will include interviewing witnesses, going through documents
preparing you to testify, and preparing all sorts of pretrial motions. This is
before outside vendors such as jury consultants are called in. This all
translates into a lot of work which means a lot of billable time. Even an
average lawyer is going to cost at least $300 an hour (some have hourly rates
approaching $1000). Most white-collar cases are not simple. A two-week trial
can easily take 60 hours. That is the inexpensive part. The preparation for a
trial can easily exceeds 1000 hours. In other words, it is not only possible
but probably that even a second-tier lawyer will cost well over $300,000. This
is aside from any legal bills you may have accrued prior to deciding to go to
trial.
For some defendants, this is
enough of a reason to take a plea. The calculation is simple. A defense will
cost $300,000. If that defendant stands to lose $100,000 per year by being
incarcerated, he would be willing to take a plea that sends him to prison for
under three years. Simply put, by going to prison for say two years, he will
lose $200,000. By deciding to go to trial, the cost will be $300,000 even if he
wins. So, the defendant may decide to take a plea purely because he will be
saving $100,000 by not having to pay to go to trial. Of course, if he loses at
trial, then he will lose many more years of income in addition to the money
spent on lawyers. Finally, another consideration for most people is simply
being able to pay for a lawyer. Often times, because most white collar
indictments focus on financial enrichments by a defendant, a lawyer will not be
willing to take money from you and will ask you to have someone else pay for
you or for you to demonstrate that in no way was this money obtained in a way
that could expose them to a claw back by either the government or by a
bankruptcy trustee. Other times, you may not have the funds required but most
lawyers who charge hourly will work with you provided they have a sufficient
retainer.
The point is, right or wrong,
for most defendants, the cost of going to trial will heavily influence their
decision to take a plea; guilt or innocence notwithstanding. Defendants do not
get reimbursed by the government if found not guilty so even in victory, a
defendant may suffer financially. It is always important to consider that the
prosecution has unlimited resources; you, in all likelihood do not. The
prosecutors get paid a salary by the government, you need to pay yours and the
longer it drags on the more it will cost you. If the prosecutor wants to, they
can drag a case on for as long as they wish. If they lose, they go home to
their families; if you lose, you do not go back to yours and you are out the
money. Unfortunately, cost has to be a factor; it shouldn't be, but it is.
Closely related to the issue of
cost is the issue of choosing a lawyer. This is probably the single most
important decision that you will make, it is important to interview at least
two lawyers before choosing which to retain. It is preferable to get input from
either clergy, former defendants, or consultants in helping you decide on which
lawyer to retain. It is important to note what a lawyer will and will not do. A
lawyer will not tell you if you are going to be indicted; he just doesn't know.
A good lawyer will never tell you that you will definitely win a trial. Your
lawyer is not your therapist (and you do not want him to be if you need to pay
him hourly). Your lawyer will lay out what he thinks is the prosecution's case
against you and he will develop defenses. He will meet with the prosecutors on
your behalf. He is your mouthpiece. He is your legal counsel. Again, if you do
feel the need to talk to someone consider clergy, a therapist or again, a
consultant such as myself. The most important factor and that you are
comfortable with and trust your lawyer. The same is true with anyone with whom
you decide to bring into the process.
Just as in the case of any
industry, the cost of a lawyer can vary. The price can range from nothing for a
public defender to in the millions for shall we say is the Rolls Royce of
lawyers. One mistake that many defendants make is that they do not know which
kind of lawyer they need. Sometimes a defendant will panic and hire the most
famous and expensive lawyer when, in reality, he would be just as well served
with a less expensive lawyer. Sometimes a customer will buy a Cadillac when any
old Chevrolet will do. To be clear, there is not necessarily a correlation
between the cost of a lawyer and the quality or suitability of the
representation. Clearly if you are a high-profile defendant, are set on going
to trial should it come to that, and have unlimited resources, then yes there
is a good reason to take the top attorney. One positive in choosing from the
top attorneys is that they do not take many cases per year. A top lawyer will
usually turn down other cases once he takes yours. However, as discussed, most
cases do not go to trial. Often times prosecutors will cut the same deal
whether you have the most expensive lawyer or a second or third tier lawyer. In
many cases, the defendants who spent over a million on legal representation got
the same plea offer as the one who spent only thousands or even if represented
by a public defender. Speaking of public defenders, it should be noted, that at
least on the federal level there are some very good ones. Often times these are
ivy league graduates who are trying to get court room experience, and this is
the only way to do so. The downside is that they often have huge caseloads.
The real question is how do you
know which to choose. When crisis hits, the knee jerk reaction is to choose the
best attorney that money can buy. It is important to take a step back at that
point and analyze you plans. It is worthwhile to hire someone who has gone
through this who can help you choose. If you are willing to concede to a plea
early on or if you are not in such a complex situation, hundreds of thousands
of dollars can be saved by choosing a less expensive lawyer who may be ideally
suited to provide you with representation.
Lastly, I am going to address
what I like to call the actuary method. It quite simply focuses on probability.
As we all know, if you entire a contest with a 10% probability of winning $1
million, then you should be willing to sell that entry for 10% of the potential
jackpot of $100,000. You would certainly sell it for half a million dollars
unless you were certain that you were going win the full million. The same
logic can be applied to the legal process.
Contrary to what we see on TV,
there is no experienced lawyer with a winning record against the government.
Any lawyer that tells you he has a winning case against the government has
probably not tried many cases. But let’s assume for the sake of argument that
you have a lawyer who wins 30 per cent of his jury cases against the
government. If you are facing 20 years then, using the logic with the jackpot,
be willing to accept a sentence of six years or less, all things being equal
since 30% of 20 is six. By the same token, if you are facing 20 years and you
are being offered a plea that can have you out in under two years, you would
need to hire a lawyer with a better than 90% chance of beating the prosecution
at trial. Most defendants do use this method in some way or another. When some
takes a deal because "if I lost, I was going to go away for 20 years"
he has decided that based on the rules of probability that he is going to take
a plea. The problem with this method is that by using this metric, no one would
ever go to trial. Indeed, we do find that most people who do go to trial were
not offered deals that were compelling enough based on this metric. But then
again, keep in mind that 98% of all cases are pled out.
I think I have hit the major
points to consider when considering taking a plea or go to trial. Taking a plea
means you are admitting to a crime. This is a life altering decision, make no
mistake about it. It often requires you to swallow your pride and admit to
things that you do not necessarily believe you did. Your life is changed in
many ways forever once you make the decision to plead guilty, However, once it
is over, you will recover you will rebuild. It is always important not to lose
site of the big picture and to never lose site of the forest for the trees.