Tuesday, December 27, 2016
To Plea or Not To Plea? (Part 2)
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.
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