I was terrified of the billable hour. In law school, my fears about law firm life did not center on the number of hours required or the work itself. Instead, I was scared of timing my work. The billable hour seemed out of step with my work style, and I worried that, as a result, my work at a law firm would be undervalued.
In law school, I got up early in the morning, completed my reading, and then had time to think about and discuss each day’s homework in the afternoon. I believed that having downtime to process the material helped me digest it. During exams, I still got up early — I outlined materials in the morning and took practice exams with my study group in the afternoon. My best thinking and studying occurred in the morning, and I designed my schedule around my body’s clock.
After I summered at a big law firm, my rigid formula (cognitive work in the morning; processing in the afternoon) seemed unlikely to translate to law firm life. At my Washington, D.C., law firm, folks rolled in around 9 a.m. and many stayed until 10 p.m. — several hours past my bedtime. Face time was important, but I knew this schedule wouldn’t work for me.
I also continued to find that some of my best insights occurred when I left something alone for a while. After working on a brief all day, leaving it for an evening often produced new insight the next morning. I would return to my desk with a new idea for organization or a fresh legal argument. How to capture these moments as part of a billable hour system? Was I doomed? I signed up for a two-year clerkship in Minnesota grateful for the guaranteed reprieve. But I did return to law firm life, and I found ways to accept and work within the billable hour’s confines the second time around.
Your schedule, your body clock
I still schedule thinking for the early morning hours. If I need to write a brief or research a complicated area of the law, my focus is best between the hours of 6 a.m. and 10 a.m. After that, I can keep going, but I notice that I’m not as fast when working off-peak hours (of course that may also be a result of the business day picking up — from 6 a.m. to 8 a.m., nobody sends you emails.) And research confirms my observations. Chronobiologist Dr. Gerard Kennedy of Melbourne’s Victoria University notes that “Adrenaline and cortisol, the stress hormones, are released by the adrenal glands to jump-start your day.” After thinking about a problem on my drive to work, I arrive eager to jump in and solve the issues.
I try to schedule meetings for the afternoons when I won’t interrupt my key thinking time. If I have to work in the evening, I make sure that caffeine is available. All of these accommodations can be accomplished within the billable hour’s constraints.
What billable hour misses
My biggest complaint about the billable hour? It doesn’t capture why people hire attorneys. I would hire any of my colleagues in light of their experiences, problem-solving abilities and creative thought processes — and, the amount of time that any colleague would spend on my case would have some, but not much, correlation with these traits. Although the legal profession typically charges more per hour for experience, we can’t measure moments of insight and latent processing. I’ve come to accept this fact. When I think of the billable hour as simply a measure of time at work, and let go of the fact that it can’t capture intangibles, I achieve peace.
The billable hour is quantitative and provides a client with knowledge as to what work is being done on their case and when. It may, in fact, be better to provide a faulty quantitative measure than to attempt constructing a faulty qualitative measure — the latter would likely be incomprehensible and subject to some raised eyebrows (Really? You’re charging me extra because you had a Eureka! moment at 2 a.m.?)
Look for a better way
Numerous articles proclaim the imminent demise of the billable hour. Of late, the trendy pieces discuss alternative fee arrangements and posit that the billable hour will go the way of the Tasmanian tiger. But alternative fee arrangements are not right for every case. Until the legal profession can offer clients a better billing system for every case, I believe the billable hour is here to stay.
And what would our alternative system look like? In my ideal universe, we would want a system that rewarded efficiency and creativity. I would want to pay a lawyer for thinking about my case before acting. I don’t know, however, how to measure these intangibles. For now, I’ll simply note that I spent 1.3 hours at my desk drafting this article … but I thought about what I wanted to say all weekend.
Sybil Dunlop joined Greene Espel in 2010. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at firstname.lastname@example.org.