Why do lawyers charge by case, not hourly? And how I spent $0 on private attorney

Quick note before you read: This is my own story and general information, not legal advice. I’m not a lawyer. Every case is different, and nothing here can tell you what will happen in yours.

I wrote a blog post on how much a criminal defense attorney in Santa Clara County quoted me. It was $7,000 for a misdemeanor and $10,000 for a felony. I’m sure the final price would have been even higher once all the miscellaneous administrative work was added, such as filing forms, notarization, and so on.

After the arraignment, the next court appearance was the pretrial conference in my case. As fancy as it sounds, it’s basically the day when the DA and the defendant (or the attorney representing the defendant) meet to explore a possible resolution, such as reducing jail time or downgrading a charge.

The private attorney and I met in his office after the arraignment, and this was when he gave me the quote I mentioned above. Without making any commitment to hire him, I left the office and started doing my own research (again!) to figure out what options would likely be on the table.

This is what the private attorney told me. For the fee of $7,000 to handle my misdemeanor DV case, his goal would be to get the charge reduced from PC 273.5(a) to PC 415. In layman’s terms, that means reducing the charge from domestic violence involving physical abuse to simply disturbing the peace.

This matched what I had already found through my own research before I even spoke with him. This is the so-called charge swap. For first-time defendants with relatively weak cases, the DA will often offer this kind of resolution.

Then I started wondering: what if the DA was going to offer the charge swap anyway, whether or not I had a private attorney?

Based on my research, my case appeared to be on the lower end of the DV spectrum. As a first-time offender, there was a reasonable chance the DA would make that offer regardless.

If that were true, then hiring the private attorney would have meant paying $7,000 for him to simply stand beside me and accept an offer that I would have accepted anyway. The entire process could easily be over in less than an hour.

For many DV cases, the DA has fairly standard offer templates, especially for first-time defendants. Jail time may be replaced with probation and community service. Felony charges may be reduced to misdemeanors. Misdemeanor charges may be reduced to lesser offenses.

Yes—it’s impossible to know for certain what offer you’ll receive until you actually show up at the pretrial conference. At the same time, at least in Santa Clara County, the offers in some cases can be somewhat predictable, with or without a private attorney.

Now, do private attorneys know this? Of course.

Looking back, I think the attorney already knew I would almost certainly be offered the 16-week DVAP program and, most likely, a charge swap. That’s why he handed me a sheet of paper listing DVAP providers and said, “You can start taking this course now.” The only reason he could have said that with such confidence is that he already knew what I was going to get.

For a relatively weak case like mine, all he would have had to do was show up at the pretrial conference with me, review the offer, and accept it—because I would have wanted that offer anyway.

That would have cost me $7,000 for essentially a couple of hours of work.

If he had charged me hourly instead, maybe the bill would have been something like $500.

One could argue that some cases genuinely require hundreds of hours of work, especially those that go to jury trial.

That’s absolutely true.

But statistically, the chance of a domestic violence case actually going to a jury trial in Santa Clara County is very small. Almost nobody wants a trial. Neither the DA. Neither the defendant. And certainly neither the private attorney unless the private attorney can make extra money out of the process.

Then I came up with the following strategy spending hours doing my own research.

• Go to the pretrial conference and find out what the DA is offering.
• If the offer is favorable, ask for time to review it. I will most likely accept it.
• If the offer is not favorable, ask the judge for time to hire private counsel. Then hire a private attorney.

It may sound simple, but it’s much easier said than done. Fear and uncertainty are major factors that make this decision so difficult. I’ll talk more about that later.

So what happened at my pretrial conference?

The DA’s offer sheet read:

“415, DVAP – if completed probation denied. If not completed 90 days of CJ or 3 FP with full DV terms.”

Without AI, I wouldn’t have known the full details on the spot. Thankfully, I was able to ask ChatGPT and immediately understand exactly what it meant. In plain English, that meant if I completed the 16-week DVAP program, the charge would be reduced to PC 415, disturbing the peace, and I would receive no probation.

That was exactly the outcome I wanted—and exactly what the private attorney had told me he would try to get.

Had I hired him, it would have cost me $7,000 for him to stand beside me and accept the very offer the DA made.

Just like that, I saved $7,000.