# The Price of the Next Step

October 2026

The cost is part of the advice.

A lawyer can be right about the law and wrong about what is worth doing. Another round of negotiations may strengthen your position and still cost more than it is likely to gain. The cost of my recommendation belongs inside my advice.

This is why I am making a fixed fee my usual proposal for new work. Before you authorise an assignment, you should be able to judge whether it is worth its price. That is harder when the price becomes clear only after the work is done.

The judgement begins with your goal. Winning a point may mean little if the dispute consumes the money, time or relationship you wanted to protect. We need to examine what you are trying to achieve, how strong your position is and what the proposed step could add. Sometimes the useful work is to establish the merits. Sometimes the right advice is to settle, do less or stop. These questions belong in good advice under any fee arrangement.

I am usually better placed to estimate my own work and choose how to do it, so I will bear the risk of estimating a defined task badly. We agree the task and its price before I begin. If proper completion proves harder or takes longer than expected, the agreed fee stays the same. Explaining my work is part of the task. Before I undertake different or additional work, we must agree its scope and price.

The outcome of a dispute remains uncertain: a court may decide against you, and new facts may change your options. We can still agree a fee for examining the documents and advising whether to bring a claim. That assessment is useful in its own right, even if the advice is not to proceed.

A small first fee can nevertheless conceal an expensive path. Before recommending a step, I must explain the costs that may follow: further legal work, expenses, court fees and possible payments to the other side. You also need to know what stopping would cost. Cost control requires a view of the whole expense, even where some of it can only be estimated.

Certainty has a price. A fixed fee may include an allowance for uncertainty, and if the task takes less time than expected, the saving does not automatically reach you as it would on an hourly bill.[1] But a lasting improvement in how I work should benefit you too. When better methods make a task reliably cheaper to perform, my quotes for new work will reflect that gain.

A fixed fee can also reward doing too little, just as hourly billing can reward doing too much.[2] Neither arrangement makes a lawyer trustworthy. I must explain what I have examined, the reasons for my advice and the alternatives open to you. You should be able to question both the recommendation and the work behind it.[3]

Where hourly billing better suits the work or your preference, I will agree a ceiling with you. We will specify whether it covers completion of the task or whether more work may remain, requiring a fresh decision before further fees arise.

You should be able to weigh my recommendation against a price I am prepared to commit to. If I cannot explain why a step is worth its price, I have not finished giving the advice.

## Sources

[1] George B. Shepherd and Morgan Cloud, “Time and Money: Discovery Leads to Hourly Billing”, University of Illinois Law Review (1999), pp. 103–118; theoretical treatment of risk allocation. https://law.emory.edu/_includes/documents/sections/faculty-and-scholarship/articles/cloud/1999-Time-and-Money.pdf

[2] Jonathan H. Choi, “In Defense of the Billable Hour: A Monitoring Theory of Law Firm Fees”, section “Monitoring and Agency Theory”. https://sclawreview.org/article/in-defense-of-the-billable-hour-a-monitoring-theory-of-law-firm-fees/

[3] Federal Supreme Court, 2C_314/2020, 3 July 2020, considerations 4.2 and 4.5.1: fixed-fee estimate risk and continuing accountability. https://mcp.opencaselaw.ch/entscheid/bger_2C_314_2020