Factors affecting amount of fee

Factors affecting amount of fee

It is important to be able to articulate the reasons why a computer crime defense may be more costly than the client anticipated. In every jurisdiction, computer crime cases pose novel questions of fact and law.

In some circumstances, the novelty benefits the defendant; a plea-bargain will be easier to work out because of uncertainty on the prosecutor's side as to the application of the relevant laws to the case at hand. It is also likely that in many cases considerable unusual costs will accompany the computer crime litigation. Therefore, it is important to detail exactly what areas of economic risk the defendant faces. It is conceivable that a computer crime case, which goes to trial, will last longer than other criminal trials. Often states will prosecute under traditional crime statutes as well as under new computer crime laws. Therefore, there will be more charges to defend. In addition, finding a jury that will be responsive to a case involving technical presentations may take more time, and evidentiary issues regarding the admissibility of computerized evidence may call for far more extensive briefing, presentation of expert testimony, and associated difficulties.

Where a computer crime case is well publicized, the attorney may anticipate spending an unusual amount of time dealing with the press.FN87 Where the case involves allegations of loss of large sums of money, various civil lawsuits may be brought by the victim or other interested parties. Such suits result in considerable additional expense if the criminal defense attorney is expected to deal with these. Even where the attorney is retained solely for criminal defense, he or she is likely to be required to respond to motions made by other attorneys, and attend hearings requested by these other attorneys in related civil litigation.

The fact that a computer crime case may involve complexities of computer programming, hardware design, accounting, or other technical fields makes it likely that the case will entail more complicated, difficult, and lengthy investigation by the attorney and frequently by a private investigator hired specifically to work on the case. Expert witnesses may be required to assist the attorney and the investigator, or to interpret aspects of the case for the trier of fact. If the prosecution hires experts, it may be necessary for the defense to hire experts to counter the state's witnesses, as well as developing material to assist in the cross-examination of these experts.

Discovery proceedings aimed at understanding the nature of the computer operation, which may have been compromised, are likely to be difficult and time-consuming. Where the discovery matters involve trade secrets or other proprietary information, it is again likely that attorneys for the victim will become engaged to a significant degree, and with their involvement will come more work required of the defense attorney. Finally, there will be special costs involved that have to be passed onto the client as part of the fee charged.FN88