Trial Dismissed, But Lawyer Wants Trial Payment Anyway.

[jaytlow]

Okay…I need some advice as I want to do the right thing and I don’t know what that is. I’ll try to brief, but inclusive. I received a summons for careless driving in NJ. I was innocent, so my father hired a lawyer for $500 to support me in a not-guilty plea, ONLY.

On the day of the trial, despite my assertions to plead not-guilty, my lawyer tried to coax me into a plea bargain. I refused and he got annoyed, retorting that I can plea bargain or pay him $300/hour to go to trial. This was never discussed (though perhaps written in his 3 page contract) so I was under the impression that the $500 quote was for his representation at my trial where I’d make this not-guilty plea.

Anyway, we decide to go to trial; however 30 minutes later, the Judge says the case was dismissed because the Town could not produce their witness. We all went home…game over.

A few days later, I receive a bill from my lawyer for $450 (1.5 hours). I was shocked, but I sent him a check for $150 for the 30 minutes that we waited for the no-show witness. He responded that trial hours begin when he enters the court room and he’d apply my $150 to my balance.

QUESTION: Am I being taken advantage of since there was no trial or is it correct to pay the extra $450? I feel ambivalent because he did not represent me or support my needs as he was hired to in a not-guilty plea. I know I can’t say for sure…but had I listened to my lawyer, the case would not have been dismissed.

Thanks for your advice, guys…

[Mr. Knowitall]

You met the lawyer an hour before trial to discuss your case and don't want to pay him for that time?

You want us to tell you your obligations under the contract with the lawyer, but haven't even checked the contract yourself?

[Litigator]

You do have to begin with the terms of the contract. Most attorneys would take a criminal/traffic type of case on a flat fee. That means when you pay the lawyer the fee is earned--if the case gets dismissed then that's good for you. I have had that happen several times with clients--who is to say it is a given that things would have turned out the same if they had not been represented by an attorney.

It sounds like there was no flat fee arrangement but it sounds like it was not a pure hourly fee that was charged either--maybe a hybrid. The key question is was there a written contract and what does it say. That is where you start. I always have clients sign a contract just to avoid this type of thing.

Also, did you pay the $500.00 and now is he wanting the $450.00 above and beyond that?

[jaytlow]

No, no, no. Court starts at 9:00 AM for everyone. For a plea bargain, I would have seen the Judge at 10:00 AM and paid the lawyer nothing extra. For a trial, I would have seen the Judge later and paid the lawyer $300 per hour. Since the trial was dismissed the case was never discussed.

Except for my father’s initial telephone conversation and my 10 minute talk reiterating a not-guilty plea, there was no other conversation with the attorney. I actually sat quietly in the court room and awaited my turn. The lawyer did not even know who I was until 9:45 AM when the Judge called my name.

As far as the contract, it stated that I will be notified if costs are incurred above the $500 retainer. I think a few days prior to the actual court date would be more acceptable, but maybe in the 3 page contract it stated that any prior notification at any time will suffice.

I am here asking your advice because I don’t know what is right. No need to jump down my throat. A simple yes he is due the fees is all I need to put the balance in the mail. Thank you!

[jaytlow]

Hi Litigator...I didn't see your reply before. Yes, I paid the $500 in cash a month before the court date. (He was on vacation.) The contract vaguely stated that any fees incurred over the $500 retainer would be discussed with me prior to billing. However, he only said—on the day of the hearing—that to go to trial would be an extra $300 per hour. It caught me off guard.

[Mr. Knowitall]

Without seeing the contract, I can't really begin to guess at this. If the contract entitles you to an itemized bill and you have not received one, request one.

You make it sound like your lawyer was present in court at 9:00, your case was called at 9:45, there was a no-show witness so you waited until 10:15 or so, and then the case was finally dismissed... 10:20, 10:25, 10:30, something like that. In which case it seems reasonable that your lawyer bill for his time in court - if the fee agreement permits that.

[Litigator]

I agree with Mr. Knowitall's post. It sounds to me like he was to be paid $500.00 initially which would not have included court appearances. His court appearances were to be billed at the rate of $300.00 per hour which does not seem out of line for New York State. Whatever time he was in court was time that could have been billed to another client had he been back at the office so court time would begin when he walked in the door until he left the courtroom, regardless of the actual time it took to deal with your case on that day. Thus, assuming this was in keeping with the terms of the written contract, the billing sounds reasonable to me.

[jaytlow]

Right…you both made some good points and that is what the lawyer is saying now. I sent him $150, because he only stayed 30 minutes longer than had we plea bargained, which was included in the initial $500 flat fee.

PARTIAL CONTRACT

IN CONNECTION WITH MY REPRESENTATION OF YOU, THE SERVICES I CONTEMPLATE RENDERING INCLUDE, BUT MAY NOT BE LIMITED TO, THE FOLLOWING: A; B; C; COURT APPEARANCES, X, Y, Z.

THESE SERVICES WILL BE BILLED AT A FLAT RATE OF $500.00 FOR TIME SPENT UP TO BUT NOT INCLUDING THE TRYING MATTER SHOULD THAT COURSE BE DECIDED UPON. IF YOU DESIRE FURTHER REPRESENTATION IN SUCH CASE, A SEPARATE UNDERSTANDING WITH RESPECT TO MY REPRESENTATION OF YOU AND THE FEE CHARGED MUST BE REACHED.

I suppose, because I hired him to represent me in a not-guilty plea, I expected the trial to either be included in the $500 flat fee or discussed up-front. This cost is inevitable and hefty when it near matches the initial retainer. Deserving or not, the day of court is no place to discuss such a thing.

Secondly, when the trial was dismissed and he did no more than sit for 30 minutes longer; I had difficulty paying $450 for this.

I am going to send the lawyer the balance, as it is not so clear cut, plus he would kick my butt should any formal dispute arise. I am thankful the case was dismissed and that it only cost me $20 to repair my car—this is what I will focus on.