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(If you have no trial folder, you can create one overnight. If you have a misleading folder, you may only find that outwhen you are on your feet in court.) The test of a good trial folder is whether someone else could step into yourshoes at a moment's notice if you were to become indisposed. That means that all your thoughts and plans have tobe transferred in some form to the file. A written opening address and a final argument can be started and updatedas you work on the case; and so can your list of witnesses and your themes for crossexamination. Your plan ofaction should then be quite apparent to anyone who has to take over from you.Advocates do not keep files and use a different system. They use the trialnotebook system. (Seechapter 14.)However, when they have to advise, draft pleadings or applications, advise on the evidence or prepare for trial,
their point of departure will always be the material collected and collated in the attorney's trial folder.4.6FeesLawyers do not enjoy talking about the cost of their services. This is a natural phenomenon. The truth is that clientsare apprehensive about the cost of litigation and deserve to be told in advance what they can expect. This formspart of the lawyer's duty to advise the client fully about the available options and the lawyer's recommendation withregard to the most appropriate course to follow. Clients should be advised what their options are with regard tofees and disbursements. Your advice will depend on the policy of your firm and the nature of the case. It is essentialin all types of cases that clients should know that they are ultimately liable for fees and disbursements. Clientsshould be advised of the following, at least:oLegal aid is available in some criminal cases and may be available in civil cases.oGenerally, the client will be liable for fees and disbursements. The fee tariff of the firm and the lawyershandling the matter should be provided with an estimate of the number of hours or days that would be spenton the matter. The expected disbursements should be explained with an indication of the amounts involved.oThe client has the right to demand that the lawyer's account be submitted for taxation.oIn some cases you may be allowed to act on acontingencyfee basis. The ramifications of this must beexplained fully.oIf any fees or disbursements are required in advance, or ascoverfor counsel's fees, the client must beadvised of the purpose and the amount of the deposit required. This is a sensitive subject as many clientsbalk at the idea of having to pay in advance for work which has not been done yet. These funds have to bekept in a trust account.oThere are other ways of resolving the dispute which may be less costly. (Seechapter 3.)The best way to ensure that there is no room for misunderstanding is to have a booklet spelling out all thealternatives and to couple that with a letter to the client confirming the instruction and what has been agreed withregard to fees. For advocates the process is different. They do not as a rule discuss fees with the lay client.