Take the Money and Run

After trial lawyer Tracy obtains an unfavorable result at trial on behalf of client Chris, Tracy files post-judgment motions and a notice of appeal but advises Chris to retain an appellate lawyer because Tracy does not handle appellate matters.

Chris is indecisive about whether to appeal and has Tracy file two motions for extension of time. Eventually Chris calls an appellate lawyer, Jamie, two weeks before the first brief is due.  Jamie agrees to take the case but is concerned about the short fuse. Chris requests a meeting to discuss the case and the terms of engagement, but Jamie says there is no time for that because the briefing deadline necessitates that work on the brief begin immediately. Jamie says, “I’ll charge you my usual hourly rate and send you monthly invoices so the costs won’t get out of hand. Now I need to get busy.”

Jamie manages to get one more 30-day extension and files the brief approximately six weeks after being retained. Jamie spends 175 hours working on the brief. At $500 per hour, the fees amount to $87,500. After the adverse party files a response brief, Jamie spends another 110 hours analyzing and drafting a reply brief for a total of $142,500 in unpaid fees.

Jamie has been sending monthly invoices to an office address listed on the internet for Chris, but none have been paid. Becoming concerned about the unpaid bills and loss of leverage, Jamie calls Chris, points out the unpaid balance, and says, “I have prepared a reply brief, but will not file it until you pay the balance of your fees in full.”

Chris had had been working exclusively at home during COVID and had not seen any of the invoices. Moreover, Chris had mentally budgeted about $40,000 for the appeal and cannot possibly pay the $142,000 that Jamie is demanding. But Chris also has neither the money nor the time to hire a new lawyer who could get up to speed to file a reply brief that is due in one week.