Considerations for defendants paying hourly fees

There are, unfortunately, few alternatives to an hourly fee structure for defendants. Fixed fees (also called lump sum fees) for defence work are generally unworkable because the duration, intensity, and complexity of litigation is frequently beyond the control of the defendant and defence counsel. Further, creating delay and confusion is often a viable strategy for defendants and there would be no incentive on defence counsel being paid a fixed fee to employ a strategy of prolonged litigation. Rather, defence counsel being paid a fixed fee would have an incentive to advise their clients to agree to quick settlements.


It seems that clients who are defendants are often more dissatisfied with legal bills than clients of plaintiffs, or corporate clients who hire solicitors. Solicitors who draft contracts and put together corporate deals are often viewed as constructive contributions to the client’s business and part of the solution. Litigation lawyers on the other hand, and especially defence lawyers, are sometimes viewed by clients as part of the problem: “Why should I have to pay a lawyer to defend this garbage claim being brought against me!?” However, it is important for clients, especially defendants, to remember that the lawyer did not create the problem and litigation lawyers, if they are honest and competent, constantly seek solutions that will resolve the client’s problem as inexpensively as possible. It is the client’s ongoing choice to use a lawyer or not.



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