Fairness: Dying by the (Billable) Hour

Alright, if you want to gin me up, just start talking about billable hours. Like in the WSJ’s Law Blog today.

The story is about a Chicago firm, Chapman & Cutler, which has upped associate salaries to NYC levels, but with an explicit catch/escape clause (depends on whether you’re a glass half-full or –empty kind of person): Associates can opt for lower hours, 1,850 instead of 2,000, and receive for a lower salary. (Not a pay cut, but not a raise, either.)

As usual with the Law Blog, the comments flush out the usual reactions to any change in the sacred cow of billable hours. Hardly any question the legitimacy of billable hours, just how the system is applied.

Lawyers have this bizarre blind spot about billable hours. Even though people like Scott Turow write articles entitled “The Billable Hour Must Die,” they don’t really mean it. They fall back on that weak rationalization, that it’s a flawed system but fairer than the alternatives. The best Turow did in his article was say about litigation: “The ratio of pain to pride has grown too high.” But really, he should have said it about billable hours, rather than litigation.

Lawyers whine and complain that legal matters, particularly litigation, are so unpredictable that they can’t possibly attach a price to them without the yardstick of billable hours. How is it, then, that oil exploration companies and environmental remediation firms can give a reasonable quote on their services? Are legal matters really so much more unpredictable than a SuperFund site cleanup? Puh-leez.

Yet despite the overwhelming reasons to do away with the practice of billing by the hour, lawyers aren’t going to let go of it any time soon. There are too many lawyers looking for jobs, for one thing. More importantly, there are too many clients who huff and puff about their bills, get a meaningless one-time reduction in it, and refuse to tackle the hard task of refusing to hire attorneys with more reputation than competence — i.e., someone other than a BigLaw attorney.

Billable hours are touted as fair (as in, billing by the hour is more transparent than a 1950 bill that would say, “For services rendered . . . $5,000.) But it’s not fair to clients to encourage inefficiency. Most partners couldn’t train a paper bag to stand open, yet it’s the young associates who get blamed for inefficiency — and that’s not fair to clients or to young lawyers. It’s not fair to ask people to sacrifice every vestige of a meaningful personal life to engage in a profession they might otherwise enjoy. It’s not fair to make fathers and mothers choose a career or time with their kids. It’s not fair to their kids that the price of having a lawyer for a parent is enduring constant absences from their lives. It’s not fair to require human beings to suppress their outrage at being treated quite badly as just one of the rules of the game. (Why is it that these games are always designed by psychopaths and sociopaths?) It’s not fair, let alone just, to society to put such an emphasis on profit that the legal needs of the middle class and the poor go unmet — and that means actual people suffer, from slumlords or abusive employers or corrupt cops or unethical insurance companies or whatever other ills bedevil modern society.

It’s not fair that this is yet one more screed against the evils of BigLaw and the billable hours fixation. I shouldn’t have to write this, a decade after I left the profession. But the same problems still exist, so here I am, still railing against injustice.

Oh well. It beats practicing law.

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