Saving Lawyers from the Destructive Six-Minute Increment

As I enter my office and prepare for my day occurs to me how different the beginning of my day is compared to when I worked in a traditional guerrilla hourly billing model. I get my laptop set up on my laptop stand. I dig through my laptop backpack for my power cord and get it plugged in. I find my SIRIUS satellite radio in my pocket and put it into my JVC SIRIUS satellite boom box (I usually listen to a station called Jamon which plays Grateful Dead, Bob Marley and Phish). I grab my coffee cup and cruise across the parking lot to the coffee shop located on site where I am a member of the coffee club. I pick up my coffee and chit-chat with some of the neighbors that I see there every day. I come back into my office and start into my workload.

I remember when I first started working as an independent practitioner that I actually felt anxious about taking the time to plug in my laptop computer each day. It just seemed like it took an inordinate amount of time to accomplish that simple task. It felt as if I was wasting time or losing minutes. I remember back to my hourly life. At the old firm, I would get into my office and make time to go grab a cup of coffee, hurrying down the hall careful not to get sidetracked by conversation with anyone else and hurry back to my desk. I maybe took a minute or three to get into my hourly billing mode, to start tracking time on my time-sheet.

I have said this before and I will say it again hourly billing is just not healthy. It is destructive to the lawyers who are subjected to it. I have always felt that in general that lawyers are a sorry lot. They are anxious, tense and many drink way too much. And, I have always been struck that for all of their power and might that lawyers as a group are phenomenally insecure. I think that a lot of these attributes come out of the culture, not the pressure of being a lawyer. I started out thinking that we needed to change hourly billing for our clients but I am now convinced that we need to overhaul the system for ourselves.

Comments

[Anon]

Can I ask you a question? I'm not trying to be a jerk; I really want to know the answer.

How do we as value billing lawyers deal with the fact that the LAW forces us to think in hourly billing mode? What I mean is there are MANY areas of law (such as family law) where fee shifting is allowed (loser or richer party pays other side's fees) and the LAW is the "lodestar" method whereby the judge multiplies hours worked times hourly rate and determines whether the figure is reasonable.

Know what I mean?

When one reads cases, one finds judges (trial courts) ignorantly and without thinking about it just talking in hourly billing language without even considering that, for example, a family law attorney might have contracted with his client to take the case for, say, $15,000, because that's the value of a good representation to a person getting a divorce with one kid, regardless of what might happen that changes the hours worked byt he attorney.

Follow me? I'm typing this very fast with improper punctuation and grammar, but what I'm asking is what does a lawyer do when in a family law case where there is fee shifting and the ignorant, stupid old-fashioned-thinking court can only think in terms of hours worked multiplied by "usual hourly rate."

As you have written about in previous posts, I try to COMPLETELY erase billable hour thinking from my mind and consider "what is the value to the client of an effective lawyerly job in this case?"

I argue that it is a copout response--given by many--that "fixed fee billing works in routine commodity-type matters but can't work for 'complex' matters."

BS! Every matter. EVERY matter has a value to the client, and although it might be difficult to do it, that value can be determined and agreed on by the lawyer and client in advance.

But what about my question? Family law and many other areas allow for fee shifting in many jurisdictions.

When I start my own firm and am able to actually represent clients like you do, how will I deal with a judge who can't get past his myopic view?

[anon]

Stated more concisely: Isn't it true that the LAW in areas where fee shifting is possible forces lawyers to use hourly billing if they ever hope to be able to argue to the court to make the other side pay their client's fees in a given case?

Hypothetical: Say my client and I agree that I'll represent her in a divorce matter for a flat fee of $15,000. The terms of the engagement are I will do my best to put her best case forward and seek justice. It might take me 40 to 200 total hours to handle the case from start to finish at the trial court level. Both the client and I, obviously, have agree that $15,000 is a reasonable value for a successful handling of the case and we'll both take the risk regarding time. That's our right, to make that agreement.

Now we get to court and it comes time for the husband to be ordered to pay my fee because of the factors there--ability to pay, etc.

Judge wants to know my rate and hours worked. I tell him about our engagement agreement.

What happens?

Perhaps this example is too easy. He could take typical hourly rate and typical hours and conclude $15,000 is reasonable.

But say the agreement was $55,000 and it turns out I only had to work 100 hours. Judge might say $250 an hour is reasonable, but not what I got, but in 75% of cases the lawyer would have had to work enough hours to ge to $55,000 in fees.

What then?