The idea of using litigation as economic leverage is as old as the court system itself. The idea has been perfected under the American system of justice. Blogs such as Overlawyered chronicle the excesses of litigation, primarily focused on personal injury cases which the author believes are unfounded. Rarely does anyone take large corporations to task, however.
We were recently retained to handle trademark infringement litigation in the California Federal District Court which fits this profile. The large corporation attempts to obtain what it can’t have by threat letter because the merits don’t back up the muscle. Knowing they are a megacorporation with virtually unlimited funds, they then file a complaint in court assuming that the defendants will simply roll over and give them what they wish for. Their strategic analysis is little more than “we can pay lawyers until the end of time and you can’t.” With all the momentum of tort reform and, from my point of view, unsubstantiated rhetoric about out of control injury litigation, I have to wonder whether or not the economic collapse will cause the pendulum to swing back. Will large corporations get called on the carpet for their abuse of the litigation system, both as plaintiffs and, more commonly, as defendants?
Let’s face it. There are certain professions which don’t lend themselves to obtaining certain goals. Sure, you can make a lot of money billing by the hour as a lawyer. But what about other priorities which somehow fade into the background as your life kicks away in six-minute increments. I’m talking about things such as creativity, inspiration, self-motivation, integrity, flexibility, balance, and – well – a pretty long list of other stuff.
So if you want to reclaim certain attributes in your life which seem to be diminished or missing, there is only one place to start. You have to take an honest look at yourself, your law firm and your business model…you need to take a hard look at yourself. You might start by asking yourself these questions and trying to come up with honest answers:
The best thing about value billing, hands down, is not what you might expect. Sure, not having to keep a timesheet is pretty awesome. The fact that you can talk to your clients on the phone without that uneasy feeling that they sense they’re somehow being billed for the conversation really helps build relationships. Value billing does allow you to be paid really well for your expertise and grand slam moments. The fact that you are never capped at some maximum rate makes anything feel possible. No question, there are lots of good things. Walking away from all that pent-up hourly billing anxiety that follows you around even on the weekend and evenings is pretty high up the list. Being measured by your worth as opposed to how long you can sit at your desk is really refreshing. The sense that both you and your client are on the exact same team and that all of your incentives are aligned with this business goals makes things seem like all is right in the world.
There was a stretch of my life where I actively studied eastern religions, especially Buddhism. Buddhist have an amazing way of simply accepting anything and everything that may be happening around them. When life is an illusion, it is really not worth getting worked up about either a flat tire or a lost client.
Admittedly, my nature is to make things happen. I love moving the ball. I wake up in the morning with a sense that I could achieve anything that I put my mind to and that there are no impediment to achievement. My law partner and brother Mark has many sayings. But one of them is “it is what it is” mine would be closer to “it is what you make it.” Where’s the truth?
There is a lot of discussion these days about the social networking aspect of the web, from Facebook to LinkedIn. Bloggers post posts and have blog rolls. People join bulletin boards and forums, and post comments on other people’s websites. Much has been said about the Web 2.0 phenomena but there is one point that is often overlooked. Online social and professional networking tools are all about participation, not association. You can have a thousand Facebook friends or read dozens of blogs daily. None of that counts as social media. The word “social” requires both a give and a take. Social needs back and forth.
Many of you may be surprised that I have no problem with the hourly rate that lawyers think their time might be worth. I do have a problem with billing by the hour. The distinction is as follows.
I admit that certain things that lawyers can achieve for their clients have value well beyond an hourly rate found on a rate sheet. When a lawyer delivers a bottom line result for a client that puts hundreds or millions of dollars in that client’s pocket, even $1,260.00 may shortchange the lawyer on the value that lawyer delivered.
But I did interesting in this article at law.com “Law Firm Fees Defy Gravity, Annual Survey Shows” is that law firms apparently continue to see increasing the hourly rate as the solution to increasing revenues. Increased revenues are becoming more important for law firms since the volume of work for many firms is severely down. If you cannot increase the number of hours worked in your firm, your only other option is to increase the hourly rate.
The flaw in this thinking is that law firms keep stepping into the same hole over and over again. They want to increase revenue, they ought to focus on providing more value to their client and charging for that value. Multiplying the number of hours worked by an hourly rate will never accomplish that goal.