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Answer:

Will you take my case for a flat fee?


We have found flat fee appeal arrangements generally do not work best for either the attorney or the client. There are several reasons for this. First, many times the client or the trial attorney may believe there are one or two “issues” in an appeal. However, once we read the entire record and conduct some legal research, we may believe there are additional issues which should be argued on appeal. This adds considerable amount of time to an initial estimate. Similarly, we may determine that a more detailed treatment of a particular appellate issue is necessary in order to present the best and most thorough arguments to the Court of Appeal. We may determine it is necessary to spend time reading case law from other states or scholarly legal publications to support our appellate arguments. This could take several days more than “standard” California appeal legal research.

In these cases, the initial estimate would prove to be unrealistic for a proper presentation of the appeal, so the attorney either loses money or has to go back to the client and renegotiate the original contract. Either way, someone is unhappy. An hourly rate provides the attorney maximum flexibility to do a thorough job. We have plenty to do and do not need to invent “busy work” on your case to increase our revenue.

Alternatively, a flat fee for an appeal may turn out to be too high. The client or the trial attorney may believe there are three or four significant issues in an appeal after a jury trial. We may estimate it would take 10 days, or 80 hours, of attorney time to read the entire record and then draft the Opening Brief on appeal. We may budget 2 days, or 16 hours, for the Reply Brief, and another 2 days, or another 16 hours, to prepare for and attend oral argument. Added to this might be 10 hours for other services, such as motions, and reviewing and evaluating the Court of Appeal’s Opinion when filed. This totals 122 hours, which would be $45,750.00 as a reasonable estimate for completing the appeal after trial. A “flat rate” attorney fee based on that estimate might be $40,000.00, considering an appropriate discount for a full, non-credit card payment at the time we are retained.

However, after reading the full record and conducting brief, initial legal research, we might discover two of the issues to be meritless, and one of the remaining issues may be presented with only a day of work. The scope of the entire project would then be half what the trial attorney and client believed it to be. The client who paid a “flat fee” for the appeal would have paid $40,000 for $20,000 worth of work. Although the client would have achieved a certain peace of mind knowing that the appeal would not cost $50,000, the client certainly did not obtain a “good deal” for the appeal when all the details are considered.

Therefore, we prefer to handle appeals on the more traditional, hourly rate basis. However, recognizing that flat fees provide the client a certain piece of mind and also that many clients do have budgetary constraints, we are open to discussing a flat fee for certain California appeals.

First, we can perform the initial case evaluation for a flat fee. After that initial evaluation, we can advise you whether or not a flat fee appeal is possible and what that fee would be. Typically, a flat fee is appropriate for appeals with shorter records and limited issues. Also, if you have a specific budget, you can let us know what that budget is, and we will discuss with you whether or not the appellate legal services can be provided within that budget. Perhaps 80 hours of attorney time would be optimal, but an adequate appellate brief can be researched and drafted in 60 hours, or even 40. As long as the client and attorney are in agreement concerning the scope of the project, then a flat fee appeal may be appropriate.

Also, if you are a Respondent and are defending a judgment against someone else’s appeal, we may be able to handle the Respondent’s Brief on a flat fee basis, but only after the Opening Brief has been filed and we have performed an initial evaluation of the merits, or hopefully lack thereof, of the Appellant’s Opening Brief. Again, we prefer to handle even Respondent’s cases on an hourly basis, and may specifically limit the scope of our services, but sometimes a flat fee can be appropriate.

If you have received an unfavorable Opinion from the Court of Appeal and desire an evaluation concerning whether or not you have a viable issue to present to the California Supreme Court in a Petition for Review, we often can agree on a flat fee for this. There is a specific time frame in which a Petition for Review must be filed, so we usually only can devote a day or two of attorney time to evaluating the case, for which we can bill at a flat rate. Similarly, after the initial evaluation has been conducted, we usually can establish a flat rate for the Petition for Review itself. If the Supreme Court grants review, however, services for briefing on the merits and oral argument generally will be billed at standard hourly rates.

Finally, we sometimes may handle a writ petition on a flat fee basis. Often a writ petition involves a shorter trial record and must be completed within a specified time, for instance within 10 days or two weeks. Once we agree on the approximate amount of time required for the writ petition, sometimes we can handle the original petition on a flat fee basis. However, if the writ petition requires further briefing and oral argument, that usually is billed at the traditional hourly rate.

Will you handle my appeal for a contingency fee?

Probably not. If you are an appellant who was a plaintiff in a personal injury or similar case and were not successful in the trial court, there is no certainty of recovery in any amount. Also, even if we are successful, the result of our work might be a new trial, or a remand for a trial if the trial court mistakenly granted a summary judgment motion for the defendant. In those cases you might lose the later trial, even though we won the appeal, and we would receive nothing. Therefore, we cannot handle appeals on a contingency fee basis.

However, we sometimes will accept appeals on a “modified” contingency fee basis. If you are a plaintiff who won at trial, or we believe the trial court error to be very apparent and your potential monetary damages very significant; we may agree to represent you on appeal for a reduced hourly rate, a flat fee, or “cap” the fees; with the balance of our compensation payable upon settlement or collection of the judgment. We only do this if it is apparent any judgment will be paid, such as when there is insurance coverage.

Please note: Each case is different, and all the terms of our agreement will be set forth in our written fee agreement, which is the controlling contract concerning our representation, and not any information on this website.