What do a lawyer and a clown have in common? No, this is not another lawyer joke. The answer is “juggling.”
A lawyer almost always manages many files at the same
time. The practice of law is a juggling
routine, where the attorney must keep many different matters “in the air” at
the same time. Some attorneys with
volume practices juggle a high number of fairly uniform cases. This is analogous to juggling 10 tennis
balls. Other attorneys process wildly
distinct cases. Juggle a ball, a bowling
pin, and a chicken.
What makes this a bit difficult is that the juggler must set
down one object and pick up another (or two or three) and never drop any of
them. Further, the objects are
usually covered in plain boxes and wrapping, but one of the objects may, at any
time, turn out to be a chainsaw.
What does this have to do with the billable minute? One doesn’t pay the juggler by the amount of
time that a particular object is in his hand.
Likewise, the amount of time that a lawyer spends actually touching a
file has little to do with the management of that file. Often neither the client nor the attorney
fully knows the contents of the problem that the client is asking the attorney
to juggle.
Managing a legal file involves knowing the characteristics
of the matter and how it is likely to behave.
It involves anticipation of problems.
It involves keeping the file moving toward the eventual resolution.
The amount of time spent keeping the file “in the air” has
little to do with whether the file is managed effectively or efficiently. To the contrary, an experienced attorney should
be able to handle matters within his competency in a shorter amount of
time. What would be the sense in paying
an attorney more because he has to spend more time on a matter than a more
knowledgeable competitor?
The billable hour is the standard method for law firm charges
because it is a proxy or estimate of the service rendered. The billable hour method of billing assumes
that the hourly rates of different attorneys are directly correlated to the
value they offer. It also assumes that
attorney time is used as efficiently as possible. I do not believe either of these assumptions
to be correct. I do not believe that the
time spent on a matter is irrelevant to the fair charge, but the time spent is
not the only relevant factor.
My clients and I usually are able to arrive at a better
estimate of the anticipated value of my services after taking into account the
complexity of the matter and my experience.
For this reason, I prefer flat fee billing where possible. If a flat fee is not possible, I would prefer
to use a fee range which identifies the variables that might make the fee
higher or lower. My clients appreciate
the greater certainty and I believe that such fees generally better approximate
the value of my efforts. I will leave the billable hours to the other
clowns.
James N Graham is a real estate and business attorney with Accession.