Denver Bar Association
June 1999
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The Myth of the Productive Lawyer

by Doug McQuiston

There is a lawyer we all know. In this little discussion, he is a metaphor, but he does exist. Like a lot of us, he works primarily at an hourly rate. Unlike many of us, he seems to have grown real well off doing it. His clients seem to love paying his exorbitant hourly rate and huge bills.

We envy him. No, we envy his income. He went from young associate to pulling down a mid-six figure income in just a few years. He never says much about what he does, but never shuts up about how much he’s pulling down.

He’s the guy doing the blockbuster deals on the transactional side, or the guy manning the money toilet lawsuit spawned when those blockbuster deals go bad. His clients pay high fees for aggressive litigation tactics. He argues that anyone who doesn’t do it that way is a patsy—his is the style in demand. Besides, the other side does it, too. His professional world is pure scorched-earth symbiosis, and it’s making him rich.

But what is he selling for all that money? To him the product is the bill. His clients seem not only willing to pay for this, they seek him out because of his style. To these clients, the courtroom is a shark tank, and the one with the biggest, meanest shark wins.

Some clients, though, are starting to catch on. In the insurance defense field, anyone trying to bill at the Shark’s rates would be laughed into the poorhouse. Nowadays, insurers try to squeeze the maximum legal result out of an absolute minimum of cash. They hire third-party bill “auditors” to pick apart every bill they receive from their lawyers. “Don’t spare the horses” has become: “Our auditor has reduced your horse feed charge by a third, General Napoleon. Our database shows horses can function with just two pounds of oats per day.”

While this aggressive auditing goes too far in the opposite direction, the motivation behind it deserves close inspection. In many ways, we brought it on ourselves. The auditors are now marketing their services to national banks and large institutional consumers of legal service. It won’t be long before they catch on too.

Whether we like it or not, we will all soon have to ask some hard questions. What is it we’re selling? Are “billable hours” our product? Even the die-hard purchasers of the Shark’s legal services are going to step back, ask what they’re buying and decide this is nuts. After all, when was the last time any of us bought a car or a pair of pants based on how many hours they took to make?

This is the classic myth still hobbling our profession—the myth of the “productive lawyer.” Every firm billing by the hour lives by this myth. Young associates are in many cases no longer taught how to practice professionally—there’s no time. Bill 2,500 hours per year? You get bonuses and early partnership. Work inexpensively to find quick and effective solutions for your clients? You may get fired as “unproductive.” Lateral hires aren’t brought on for their expertise; they’re not hired at all unless they have “portables,” lawbizspeak for a pot of clients who pay their bills unblinkingly. Many more clients are deciding they won’t tolerate this approach from their lawyers, any more than they would tolerate it from their office-supply vendor or the guy who fills the candy machine in the lunchroom.

Why do our clients hire us? Do they value our fancy offices and original art? Do they look forward to our neatly itemized bills with our firm “logo” at the top? Or do they turn to us to solve a problem they couldn’t solve on their own? We’re entitled to get paid fairly but not to take advantage. When we choose to milk a case to get our “billables” up to quota rather than identifying our client’s problem and quickly solving it, we invite the arbitrary hack of an auditor’s red pen.

When I was brought into the profession 18 years ago, I practiced under partners who believed a law license was a privilege to be earned, not leave to soak a client for whatever he’d pay. They cared less about how many hours I billed than what I billed for. Many of the hours I did record were hacked off the final bill by the partner, because the work “could have been done just as well in less time.” They never needed bill auditors because they did such a good job of it themselves.

What if we all took this approach— asking ourselves what our clients needed, then doing it for them as quickly and cheaply as possible? We might not only restore the profession’s image, but we might put the legal bill auditors out of business before they put us out of business.

Maybe it’s time for the Shark, and the rest of us, to remind ourselves that we don’t sell bills. We sell solutions.

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