Will you take my case for a flat fee?
We have found flat fee arrangements do not work best for either the attorney or the client for an appeal. There are several reasons for this. First, many times the client or the trial attorney may believe there are one or two “issues” in a case. However, once we read the entire record and conduct some legal research, we may believe there are additional issues which should be argued. This adds considerable amount of time to an initial estimate. Similarly, we may determine that a more detailed treatment of a particular issue is necessary in order to present the best and most thorough arguments to the Court. We may determine it is necessary to spend time reading case law from other states or scholarly legal publications to support our arguments. This could take several days more than “standard” California case law research.
In these cases, the initial estimate would prove to be unrealistic for a proper presentation of the case, 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 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. 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 miscellaneous services, such as motions, and reviewing and evaluating the Opinion when filed. This totals 122 hours, which would be $45,750.00 as a reasonable estimate for completing the appeal. A “flat rate” 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” 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” when all the details are considered.
Therefore, we prefer to handle appeals on the more traditional, hourly rate basis, with a few exceptions:
We are able to conduct an initial evaluation of the potential merits of your appeal on a flat fee basis, generally calculated at the hourly rate for one or two days of attorney time, i.e., $3,000 to $6,000.
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 will be billed at hourly rates.
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.
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.
