In part 1 of this article, we began our examination of legal fees in DUI cases, ending up right in the middle of High BAC cases. This 4-part installment is long enough, so let’s just jump right back where we left off: I charge $2800 for a 1st offense DUI. That fee does not include the costs of a trial, which is highly unlikely anyway. Because I charge separately for the extra work I do in any case, and because it is sometimes possible to reduce High BAC charges authorized by either a local municipality or the Prosecutor’s offices in Macomb and Wayne Counties, I have an incentive to do the extra work for that kind of plea deal. The procedures by which those bargains are negotiated involve added effort, and time so I understandably charge for that. In my office, that extra work usually runs an additional $200-$400. In some (rare) cases, it can add another $600 to the total fee, but usually no more.
Why would I charge a constant and flat $4000 in all High BAC cases? In other words, why would I build in a cost for work that might not happen? I will certainly collect that, if I earn it, but otherwise, a High BAC case proceeds no differently than a regular 1st offense drunk driving. The sad answer is that some lawyers do it because they can. People facing a DUI are anxious and afraid, and they like reassurance. They are vulnerable. Some see that as an opportunity to cash in. I am reminded that integrity is sometimes defined as doing the right thing even when no one is looking, or no one will find out what you’ve done. In other words, follow the golden rule and treat others as you would wish to be treated. That will become a there-here. Let me repeat: There is ABSOLUTELY ZERO difference in the legal work involved if there is not going to be any negotiating away of the High BAC charge. Yet, because someone is afraid, and therefore vulnerable, they can be parted from their money much more easily. Frankly, I think that’s shameful. I make a good living at what I do, but I cannot imagine taking advantage of anyone in that way. Whatever happened to the golden rule? Do we just disregard it when we see a chance to grab some gold?
When we built our house, my wife decided upon Jenn Air appliances. We knew that Jenn Air is Kitchen Aid’s higher end line, and our salesman was very upfront about it as we looked over our various options. He told us that, in the line we had selected, the refrigerators had the same internal components, but the Jenn Air was laid out just a bit differently inside. It was a little bit more luxurious. The stoves were somewhat different, so the Jenn Air was a clear upgrade over the Kitchen Aid. You could accept that the differences justified the additional cost with those two items. He then told us that the microwaves were not just similar – they were absolutely identical in every respect, except that the Kitchen Aid had a “Kitchen Aid” badge on it, while the Jenn Air had a “Jenn Air” badge on it. The price difference wasn’t that much, but he wanted us to know that there was absolutely nothing different between the two except the name and the higher price on the Jenn Air. We were paying more for the name, and nothing else.
That’s how it is in terms of the legal work that will go into a regular 1st offense OWI charge versus a High BAC case where there is no possibility of negotiating a reduction in the charge. I think it is morally imperative that, as a lawyer, I am upfront about and disclose this stuff. Being honest probably costs me money in the long run, but Karma can be a… well, you know. Remember that golden rule: Treat others as you would be treated. That may cut into profits, but if everyone and every business just followed that simple directive, life would be so much better.
For example, I may meet with the prosecutor in a case where someone has blown something astronomically high, like a .36, or was also involved in a High BAC DUI accident, and learn that the prosecutor will absolutely not negotiate with me for a lesser charge under any circumstances. If my investigation also leads to the conclusion that the charge is legally sound and there is no viable challenge to be made against the evidence, then I’m not going to waste my client’s money, my time, and, more important to me than either of those things, my credibility, by continuing to badger the prosecutor with continued requests for a deal he or she will not make. My client will not be paying me extra in order to wind up getting nothing for his or her money. Put another way, it’s better to not pay for the unnecessary work and not get the deal than it is to pay for the unnecessary work and still not get the deal.
One of the reasons that so many “general” lawyers take on DUI cases is that many DUI cases are not incredibly hard to handle, although there is a huge difference between “handling” a case and producing the best result possible in it. I could “paint” the ceiling of the Sistine Chapel; give me a spray gun and a tank of paint, and I can put a coat right over anything Michelagnelo left behind. Does that make me a “painter” on the same level? Of course not! In the real world, this often leads to way too many lawyers including “DUI” and “drunk driving” in the list of types of cases they handle. I cannot help but shudder when I see something like “divorce” tossed in to the menu of services of legal services offered to the needy consumer, along with criminal, DUI, wills, and, heaven forbid, personal injury. This is like the heart surgeon doing facelifts and then trying his or her hand at hair transplants, as well. Whether you even call me or not, take this piece of advice to heart: If you’re facing a DUI charge, do yourself a favor and hire a real, bona-fide DUI lawyer. This means someone who either exclusively or primarily concentrates his or her practice on DUI and related cases. “Related,” in that sense, means things like driver’s license restorations for those who have lost their licenses for multiple DUI’s, and other cases that primarily involve motor vehicles and driving offenses.
There are a few other things you should know about before we get into the specifics of legal fees that will help you understand the bigger picture of pricing. Almost every lawyer charges a separate fee for a trial. Trials are very expensive and, if done properly, very time consuming, as well. That’s why they’re so expensive. Given the statistics, you should consider a trial only when it genuinely holds the prospect of an acquittal. As we’ve seen the “odds” come in at about one in a thousand. Now, hold on, because here comes another huge HOWEVER:
It is a mistake of the highest magnitude for a lawyer to EVER approach a DUI case as if he or she is even slightly inclined to just roll over, and take a plea. Sometimes, wrangling the best deal possible involves playing a game of chicken. Remember, we noted that a comprehensive knowledge of DUI law has to be part of a larger understanding of how use perception, science and time to your advantage. Here, it is perception that matters because no prosecutor will bargain hard with any defense lawyer who will surely back down. As a defense lawyer, it is important to never let the prosecutor forget that, no matter how solid the evidence may be, you can make him or her go through all the paces of trial just because you can. Trials are a lot of work for both sides. That is, after all, why it’s called negotiating; each side gives up a something to get something.
Here is a lesson on that very point I remember from many years ago, as I sat in the back room of a local court when a super-prominent criminal lawyer was there for one of his cases. This guy (still) is one of the top 5 big time lawyers in the Detroit area, and his caseload pretty much begins and ends with life felonies. Beyond being good, he is a nice guy, as well. A few younger prosecutors gathered around, and, as the conversation progressed, he was asked if he ever takes a big case and just accepts that his client will be ultimately be convicted. He shook his head “no” and pointed out that no matter how bad things look at first, if the lawyer begins a case with the idea that the evidence is solid, then that will be the lens through which it is all viewed. In other words, it is human nature to look for confirmation of what we believe. He said that if he takes a case and begins with the assumption that are problems with the evidence, then he will examine that evidence not with the bias to confirm that it is solid, and that his client is, in fact, guilty, but rather with the bias that if he just keeps looking hard enough he’ll find the way out. He’ll find the problem. He pointed out that reality must temper optimism, but that the first job of a defense lawyer is not to look at how good the prosecutor’s case is, but rather look for what’s wrong with it. I have been guided by that ever since.
The way I see it, you will never discover those things that can get you out of a DUI without assuming you’ll find them. Even if you don’t find the bombshell that gets a case tossed out of court, you may find just enough to drive a plea deal that would not have otherwise been possible. Perception, as they, say, is reality. Project the image of a slump-shouldered, tired lawyer in a rumpled suit resigned to do nothing more than accept the best plea bargain offered by the prosecutor, and that’s exactly what you’ll get. You have to do better if you want better.
One thing that usually separates real DUI lawyers from their more general practitioner counterparts is that DUI lawyers usually have highly developed expertise in some area or other that is directly relevant to DUI cases. Some DUI lawyers have unrivaled knowledge about the datamaster breath machine. That’s the big breath-testing machine most people will blow into at the police station. Some lawyers are walking encyclopedias of every aspect of the legalities of traffic stops. Other DUI lawyers have unrivaled expertise in the area of field sobriety tests. To be sure, being a DUI lawyer means understanding all of these areas much more comprehensively than a “regular” lawyer, but even within this smaller field, everybody tends to develop his or her own particular niche.
In my case, I concentrated in the field of alcohol and addiction issues. I have formally studied the onset, development, diagnosis and treatment of alcohol problems at the post-graduate, University level. My extensive clinical training enables me to make sure my clients don’t get steamrolled into expensive and unnecessary treatment and that they aren’t seen as having drinking problems they don’t have, or, when their drinking is an issue (think 3rd offense felony DUI here), that it is addressed in a productive way. I use this knowledge to secure a decided advantage for my clients.
We’ll pause here, and come back in part 3 to pick up our discussion of legal fees in DUI cases, beginning right here, in our discussion of how most DUI lawyers have developed a “niche” even within the field of drunk driving.