Trial Counsel for Law Firms

Criminal Trial Economics

We previously wrote about civil trial economics and the decision about whether to settle or go to trial (which is a fundament client decision). We can apply a similar economic approach to decision-making in criminal matters.

In a criminal matter, settling is usually a joint submission on a guilty plea with agreed upon facts. The result of a settlement is generally clear for criminal matters subject to judicial discretion to vary a joint submission. Sometimes the Crown and defence will not agree on a joint submission, but the Crown will show its cards on what it will ask for in a guilty plea scenario. This is known as an open position.

Joint or open, knowing the facts to be read into the record on a guilty plea is very important as one can only appreciate sentencing case law with the facts in mind. Sentencing case law helps guide the analysis on a reasonable sentence, whether it’s a guilty plea or conviction after trial. Therefore the facts are a key aspect of plea negotiations.

The analysis of pleading guilty versus going to trial in a criminal matter can be approached using basic economics just like the civil trial. For example, consider an impaired driving case, where there is no prior record, minimal impairment, no accident and a potential argument about the extent of intoxication. Assume the probability of conviction is 80% and the probability of a dismissal is 20% and the offer on a guilty plea could be the statutory minimum.

Going to trial will result in significant legal fees and perhaps even a forensic toxicologist plus time off work. These can all be estimated or locked down on a flat fee basis. Assume $25,000. All efforts are designed to avoid a conviction. It’s all or nothing.

A conviction will mean a criminal record $1,000 fine, driving prohibition and costs for programs to get the licence reinstated. The criminal record and driving prohibition may have serious job implications and transportation costs. Assume the fine and licence reinstatement costs to total $2,500. Assume the lost job opportunities is $120,000 (bearing in mind this can be a major setback with long-term consequences). And assume added transportation costs are $10,000.

Will the person plead guilty? They have an 100% chance of losing $25,000 at trial. However, they stand a 20% chance of saving all costs of $2,500 + $120,000 + $10,000, or 20% * $132,500 = $26,500. The rationale decision maker would lean in favour of going forward with trial.

A self-represented person with no legal fees and no forensic toxicologist and no potential loss of employment may run a trial just to avoid the fine, licence costs and transportation costs.

Beyond the cost-benefit analysis, there are other factors at play affecting the decision of whether to settle or go to Court, such as stigma which is huge in criminal defence.  We discuss important factors here.

Hassell Trial Counsel
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Toronto, Ontario M6G 3P8


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