What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer?

October 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefenselawyer.com

(972) 369-0577

This is a common question.

Remember a lawyer is selling their time.  Both a flat fee and retainer are different ways the lawyer sells that time.  These are actually topics of much debate in the legal community and are a bit more complex than meets the eye.

Abraham Lincoln said the legal fee is important because “It lets the client know he’s got a lawyer and the lawyer know he’s got a client.”

Important Reasons Which Go Into a Fee Amount 

A lawyer’s time is not an unlimited resource and some lawyers are justified in charging more for their time than others based on complexity of the matter and that lawyer’s experience.

Also, when a lawyer accepts your case – the lawyer is also limiting themselves because the lawyer now can’t sell time to (1) a different paying client because there are only so many hours in a day or (2) other potential clients he or she cannot legally represent because they would be conflicted from representing by virtue of their representation of you.

Flat Fees

A flat fee sounds a bit more self-explanatory than a retainer but there are still restrictions and issues with lawyers charging flat fees.

The advantage of the flat fee is it is clear-cut and caps the client’s potential financial output.  The disadvantage is the client could over-pay if the case is more resolved more quickly than anticipated.

Flat fees must still be justifiable at the end of the day.  Common sense still applies.  Where a client pays a lawyer gobs of money on day one and the client terminates representation on day two – the lawyer simply cannot justify keeping anything other than the amount he’s actually earned, if any.

Retainers

A retainer is money paid to the lawyer which the lawyer sets aside in a trust account.  The money legally remains the client’s property unless or until the lawyer earns it.  Once they earn it, they can then draw it from the account.

If the lawyer does not earn all of the money you deposited in trust then the client is entitled to a refund of the unused retainer.

The upside of a retainer is obvious.  The downside of a retainer is once the retainer has been expended, it typically needs to be refilled.

I compare a retainer to a tank of gas.  Sometimes it takes a half a tank to get to the destination but sometimes it could take 3 tanks.

Is A Flat Fee Better or is a Retainer Better?

It depends on the case in my mind.  You don’t want your lawyer to be paid too much and believe it or not — you really don’t want them to be paid to little either.

In a criminal defense practice there are many cases we handle very routinely where our time is predictable and as the lawyer, we’re willing to take the risk on a flat fee because we know from experience the amount of time we’ll be spending on a certain case falls in within an acceptable range.  Those tend to be misdemeanors like DWI, domestic assault, or theft cases to name a few.

Retainers are a flexible way to handle cases where our time output will be a bit more difficult to predict.  Those would typically be cases like sexual assault, felony drug possession, or white collar charges such as embezzlement or money laundering.  A retainer also assists when we need to pay other client expenses such as investigators or expert witnesses which we’ll need to involve from time to time depending on the case.

The retainer, then, is a good way of making sure the fee is just right on more complex cases where a flat fee may just be far too high or far too low.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is Designated as a Texas Super Lawyer by Thomson Reuters.

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Your Right to a Speedy Trial – and The Effect of the COVID Pandemic

October 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

This could probably be a full blown law review article but I’ll stick to good blogging etiquette – long enough to cover the basics and short enough to keep interest.

These days I sound like a broken record with my clients.  “We’re not able to have your jury trial yet.  We need to reset your case again.  Sorry.”

Many of my clients don’t want a speedy trial and many are happy to put off their prosecution indefinitely.  Everyone is different and their circumstances are different so I can see it both ways.  The Constitution guarantees a right to a speedy trial for no other reason that it takes away a possible prosecutorial ploy to ruin someone’s life by just maintaining a cloud of suspicion over a person without ever having to prove their case.

I find courts and prosecutors still struggle with their own understanding of what a speedy trial is or isn’t.  Unfortunately my experience is Courts and prosecutors generally don’t take speedy trial issues very seriously and only see it as an arbitrary escape hatch for a criminal to avoid responsibility.  Our challenge is to show the Court why the Constitution means what it says and says what it means about speedy trials in every case.

How Speedy Trial Works under the Law

The cornerstone case for speedy trial for both State and Federal purposes is called Barker v. Wingo.  That case weighs four separate factors in determining whether there has been a violation of someone’s rights to a speedy trial.

The Barker v. Wingo Factors (Quickly)

The Court Weighs:

  1.  The length of the delay;
  2.  The reason for the delay;
  3.  The time and manner in which Defendant asserted their right;
  4.  The degree of prejudice Defendant has suffered because of the delay.

Prejudice suffered can be anywhere from the natural stress and anxiety which comes from being criminally prosecuted to things which more directly impact the case such as witnesses being more difficult to find or memories about an event fading.

Another big factor is the reason for the delay.  Courts typically try and calculate who is at fault for how much of the delay.  In Barker v. Wingo, the accused was a co-defendant in a homicide.  The prosecution wanted to convict the other person first so they sought 13 or 14 continuances on Barker’s case for strategy reasons.

COVID Delays

We won’t know how the Courts will construe speedy trial delays under Barker for the purposes of the pandemic.  I don’t think they can blame the defense, obviously, for the delay – but the question is whether the Courts will attribute the delays to the government because of of public safety?  Could courts turn around and try to blame Defendant for asserting rights such as the right to confront witnesses in person – or not having a judge trial instead of a jury trial?  It’s hard to know.

Stay Tuned

In 2021 and almost certainly beyond – we are looking to have a major backlog of court cases which will need to be resolved.  Courts have often been dismissive of speedy trial issues but the issue may have a resurgence.

What Lawyers Should be Doing Now

There is really no reason a lawyer shouldn’t file a speedy trial demand in each of their cases set for trial during the pandemic.  Those speedy trial demands can always be waived, but it helps establish the third prong – that the defense is trying to assert their right early in the process.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

 

 

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What is Statutory Rape?

October 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Statutory rape is the common term used to describe when a person over the age of consent (in Texas, 17) has sex with a person under the age of consent.  Texas does not call it “Statutory Rape” and here it is just referred to as “Sexual Assault of a Child.”  The penal code expressly states sexual assault of occurs regardless of whether the person knows the age of the minor.  Tex.Pen.C. 22.011 (a)(2).

It is a second degree felony carrying 2-20 years of jail and equally concerning is it carries lifetime sex offender registration.

Strict Liability

Most crimes require what is known as a “mens rea” or mental state.  An easy example of a culpable mental state is intentionally knowing you’re taking someone else’s umbrella when you leave a restaurant.  You’re not committing a crime merely by taking it — but the crime occurs when you intentionally or knowingly take it without the owners consent.

Sexual Assault of a Child is known as a “strict liability offense” which means there is no culpable mental state.  Like speeding, the offense is said to have occurred when the act is done regardless of what the actor intended.  The constitutionality of the strict liability nature of statutory rape has been litigated in Courts over the years.  The courts have cited an “overriding government interest in promoting the health, safety and welfare of it’s citizens” in upholding strict liability offenses.

The Romeo and Juliet Defense in Texas

It is an affirmative defense to sexual assault of a child where the actor was not more than 3 years older than the minor at the time of the intercourse and if the minor was at least 14 or older.  Tex.Pen.C. 22.011(e).  The defense sounds straight-forward but it can be a bit confusing.

In other words a 19 year old could have an affirmative defense to sexual assault of a child if the minor was 16 at the time they had sex provided it was consensual and their birthdays were no more than three years apart.  Or, a person as old as 17 may also have an affirmative defense to statutory rape if the complaining witness was 14 — again — provided their birthdays were no more than 3 years apart and the act was consensual.

The defense would not apply to a 16 year old having sex with a 13 year old, however, by the statute’s very language.  Nor would the defense apply to a person 19.5 years old having intercourse with someone 16 years, 1 month old.

“But I Thought She Was Old Enough”

Many people think it is or should be a defense if the person thought they were having sex with someone of age.  This would be what is known as a “mistake of fact” defense under Texas Law.  The mistake of fact would, in theory, nullify the culpable mental state.  But courts haven’t recognized this defense in Texas.  Again, because it is a strict liability offense – there is technically no mental state to nullify.  So unless the legislature or the Court’s say otherwise, “I thought she was old enough” isn’t a winning argument.

So Is There Any Defense At All When Someone Thought Their Partner Was Old Enough?

A prosecutor has what I call an “over-ride switch” to the Texas Penal Code and the Code of Criminal Procedure.  That is their duty not to necessarily seek a conviction but to see justice is done.

We can absolutely try to convince a prosecutor the facts of a particular case merit the case not being prosecuted.  It could be the older person suffered from some sort of mental deficiency, illness, or shortcoming.  It could be the teenager appeared and represented themselves as older in a particularly egregious manner, or even the teenaged minor used some other type of threat or coercion too.  As I said, every case is unique and it can be a combination of factors.

The prosecutor has the legal duty and responsibility to evaluate each one to see if it merits prosecution… though, it is never favorable to be at a prosecutor’s mercy when lifetime sex offender registration is on the line.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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What is an “Outcry” of Sexual Abuse?

October 4, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

An “outcry” is the term used to describe generally when a complaining witness – typically a child younger than 17 years old – describes sexual abuse for the first time to a person 18 years or older.

Why an Outcry is Important

Outcries and the circumstances which surround them are critical to sexual assault cases.  Psychologists I’ve worked with on sexual abuse cases have described sexual abuse or molestation as a “rock in the shoe” a victim carries with them all or most of the time.  The victim, psychologists say, are then constantly evaluating and ‘testing’ others around them including grown-ups to see if they can trust that person with the often confusing and very private information.

 

 

When an Outcry Can be Questionable

We expect valid outcries of abuse, then, to be in circumstances where the victim is in a situation of trust, love or safety.  But we often see an outcry in situations where the complaining witness is in trouble with an adult or led by hysterical questioning.  With teens, a questionable outcry may come when parents are cross examining a teen trying to avoid being in trouble – or where a teen might be desperate for attention.

Often times law enforcement and even prosecutors will glaze over problematic outcries.

The Legal Significance of an Outcry

Texas Code of Criminal Procedure 38.072 allows an ‘outcry witness’ to testify in court and repeat the minor’s story they were originally told.  Because outcry is a ‘process’ of the minor opening up – often to different adults – courts generally allow multiple adults to come and repeat the child’s story.  Normally repeating what another person has said to you is deemed hearsay and is inadmissible in court – violating your 6th Amendment right to confront your accuser.

The original outcry witness is allowed to testify but often so are more polished law enforcement professionals too because they also interview a child accuser.

An outcry witness cannot testify in the place of the complaining witness, but instead the prosecution uses outcry witnesses to fortify the complaining witness’ story.  It’s not uncommon for the state’s witness’ to play human polygraph and try to telegraph to the jury they believe the accusers story.

Summation

The prosecution and defense have a very different view of an outcry.  While the prosecution tends to take an outcry at face value and then to exploit rule 38.072 in an effort to retell time and again the allegations before the jury, the defense is focusing on the context and the substance of the outcry itself.  Does it pass the “rock in the shoe” test?

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What Constitutes Consent in a Sexual Assault Case?

September 29, 2020

By Jeremy Rosenthal, Criminal Defense Lawyer

(972) 369-0577

jeremy@texasdefensefirm.com

The question of consent in sexual assault cases is very complex – probably impossibly so.  If you add alcohol or intoxication to the mix the issue gets even tougher if that’s at all possible.  I’ll do my best to make sense of it.

The Law

In Texas, Sexual Assault is defined by Texas Penal Code 22.011 and says in relevant part:

(a) A person commits an offense if :

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent;  or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

The legal definition of “consent” means “assent in fact, whether express or apparent.”  Tex.Pen.C. 1.07(11).  Not too helpful, is it?

Also, today I’m discussing sexual assault – not statutory rape or sexual assault of a child.  That is a different topic.  Persons under the age of consent in Texas (17) cannot lawfully give consent.

Digging Deeper

At a trial, the Judge would instruct the jury to follow the law.  The law I just recited for you.  As you can tell – it is amazingly subjective.  Here’s what is terrifying about the whole conundrum – opinions about what may or may constitute consent vary greatly and typically along gender lines.

In a recent book by Author Malcom Gladwell called, “Talking to Strangers: What We Should Know About the People We Don’t Know” Gladwell attempts to tackle this very issue.  He listed the results of a Washington Post/ Kaiser Family Foundation Poll of 1,000 college students which asked the students whether they thought any of the following behaviors “established consent more more sexual activity.”

A.  Takes off Own Clothes:

  1. Men: 50%
  2. Women: 44%

B.  Gets a Condom:

  1. Men: 43%
  2. Women: 38%

C.  Nods in Agreement:

  1.  Men: 58%
  2. Women: 51%

D.  Engages in foreplay such as kissing or touching:

  1.  Men: 22%
  2. Women: 15%

In each scenario, women consistently believe across the board consent has not been given more frequently than men.

When meeting with clients and their families, I’m often told of specific behaviors of the complaining witness — typically the female — and asked why that doesn’t solve the issue right there?  “But she got into the car with him….”  or “But she pulled his shirt off…” or “But she began rubbing me…”

What this study says is men and women simply see the issue differently… and short of actual verbal consent, there is virtually no “silver bullet” which vindicates someone accused of sexual assault cleanly.

Does This Mean Anyone Who is Accused is Going to Lose?

Certainly not.  A ‘saving grace’ in all this is the standard of proof in a criminal case, that the state must prove their case “beyond a reasonable doubt,” is a fire-wall to a conviction.

Remember, the ‘intent’ aspect of a sexual assault or rape jury charge is based on the accused’s point of view – not the complaining witness’.  That is to say if there is a reasonable doubt the accused thought the complaining witness consented, then they should be acquitted.

So the question about, let’s say, the accuser getting a condom isn’t whether she was, in fact, consenting or not consenting to engaging in penetration — it is whether the accused could have reasonably believed that established consent.  43% of male college students think it does.  In a perfect world, the communication between the two people would be as clear as possible but since it’s not a perfect world – we have to deal with real world scenarios.

In this scenario the defense would likely argue the accused could have reasonably believed the accuser was giving consent because the question is whether the accused intended to knowingly and intentionally act without the accuser’s consent.  Even people who staunchly believe there was no consent given in that circumstance may still likely concede the accused might have misinterpreted this and vote for acquittal.

On the down-side, it goes without saying people who hold firm views on these topics have an understandably difficult time seeing the issue another way.

Misconceptions About the Legal Definition of Consent

I see lots of debate, literature and public information campaigns trying to educate people on what is and isn’t consent.  Examples could be like this video about drinking tea.  It’s very clever and informative and I think all of our hope is it helps to cause people to understand and conform to acceptable behavior – but it’s not necessarily the law.  In the courtroom we deal with statutes, jury charges, and what the legislature has defined as consent.  If it’s not in the Texas Penal Code or some other statute – it’s not the law.

How Does Your Lawyer Defend You in a Sexual Assault Case?

First, your lawyer has to understand most of people’s views about consent in sexual assault cases are driven by emotion, life circumstances, and their pre-existing world views.  Parents of teenage sons may very well imagine their own son in similar circumstances facing lifetime sex offender registration while a potential juror who has themselves been a victim of sexual assault may feel an intrinsic connection with the accuser.

Jury selection is therefore crucial.  It is the lawyer’s ability to eliminate jurors who have pre-existing biases and prejudices that are so strong they can’t sit on the panel.  And any lawyer who has tried enough cases will tell you – they don’t advertise who they are up front.  Your lawyer has to be able to evoke enough emotion to get that juror to reveal their true inner dialogue.

It’s a given beyond jury selection your lawyer needs to work, work, work.  The harder they work, the luckier they will get.

*Jeremy Rosenthal is board certified in Criminal Law by the Texas Board of Legal Specialization and has been designated as a Super Lawyer by Thomson Reuters.

 

 

 

 

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