Call me a step slow. I’ve only recently stumbled across the memo prepared by Yale Law School warning students about the tyranny of the billable hour. As someone who billed hours for more than 25 years but no longer plays in that sandbox, I feel compelled to comment.
At the outset, let me type words that may startle lawyers just now beginning their careers: I never felt burdened by the need to bill hours. (Let the abuse begin!) After clerking, I started my career in the 1980s at a small firm that didn’t make a big deal about billing time. I was instructed by one senior partner (and I very nearly quote): “You learn the area of law that you’re researching; that’s what will make you a valuable lawyer some day. I’ll take care of the bill, making sure that our client pays only a fair price for your work.” (I later dedicated a book to that guy.)
I was told by another partner: “We’re a small firm, so we’re not as prominent as the big firms are. It’s part of your job to help raise the collective profile of this firm and its lawyers. We don’t particularly care whether you join a bar association, write articles, or go on the board of a non-profit, but we do care that you do something to let people in the community know that we exist. It’s part of your job.”
I thought those guys were right, and I took that attitude with me when I later (must have popped a gasket and) moved from a small firm in San Francisco to one of the world’s largest firms in Cleveland. I continued to stay busy with client work, but I also made a point of helping to raise the firm’s profile in the world. I occasionally felt burdened by the crush of work, but I never felt burdened by the need to “bill hours.” In the course of 25 years, while I practiced law at two different firms, no one ever said a word to me about the number of hours that I billed.
That cuts in both directions. On the one hand, no one ever asked me why I was foolishly wasting all that non-billable time teaching classes and working on non-profit boards. On the other hand (at least after I left San Francisco), no one ever said, “Congratulations for having written those books,” or, “Congratulations on getting that article published in the Wall Street Journal.” But I, at least, took far more satisfaction in those accomplishments, and in the results that I achieved for clients, than I ever took in having billed a lot of hours (which seems to me like a uniquely unsatisfying professional goal).
How many hours did I bill?
I really don’t know. In San Francisco, I never saw any record of my time, and in Cleveland I looked only occasionally. But I’ll guess that I worked about 2400 to 2600 hours every year, of which I probably billed 1700 in my slowest year and 2500 in my toughest. When I was frantically busy with client work (as in the 2500-billable-hour year), I basically eliminated all of my extracurricular dabblings, writing no articles, declining all invitations to speak, and cutting way back on professional reading. (As readers of this column know, I also drafted my son to help with client administrative work.) When client times were slower (between large cases, for example), I renewed my extracurricular efforts to raise the firm’s profile, by giving talks, writing books and articles, working on bar or community activities, and teaching (Complex Litigation) at one of the local law schools. For my last three years in practice, I also co-hosted a blog, which required devoting a fair amount of time to drafting three or four short posts every week.
Those are my “credentials,” such as they are, to speak on this subject.
So what of the Yale memo?
To my eye, the Yale memo makes several (relatively minor) mistakes. The memo assumes that lawyers take an hour for lunch every day. For many lawyers, that’s not correct; lawyers will take an hour when they make lunch plans out of the office, but on other days often simply grab a quick sandwich or eat at their desks. The memo also assumes that lawyers spend a half hour every day “reading legal updates and reviewing general correspondence.” In my experience, professional reading often gets done while the lawyer is eating that sandwich at his or her desk.
The Yale memo also assumes that lawyers working a 12-hour day will take an hour each for lunch and dinner. That varies by lawyer (and, frankly, in my experience, by age). Some young, single associates, filled with a desire to take the firm (or its clients) for every dollar that’s available, will in fact work until the time designated for a free dinner and then go out for the most expensive meal that the firm (or a client) will reimburse. But more mature or sensible lawyers frequently do not. In particular, a lawyer with young children at home will often choose to leave the office at a decent time, eat dinner with the kids (or, at a minimum, be home in time to tuck them into bed), and then work a couple of hours after the kids are asleep. The “hour” taken for dinner in that situation is not at all an hour in the office.
Finally, the Yale memo adds commuting time for each day the lawyer works, including work time attributed to Saturdays. Although this again varies with the individual, many lawyers believe that Saturdays were made for local coffee shops, which can cut the weekend “commute” to five minutes instead of the usual 35.
The general thrust of the Yale memo is thus accurate, although it misses the mark in certain small particulars.
And what of a life, such as mine now, working in-house, that is beyond the billable hour?
My workweek is far more predictable now than it was for the preceding 25 years. I continue to occasionally feel burdened by work, but never feel burdened by the need to bill hours. I continue to dabble in extracurricular professional activites, although not nearly as aggressively today as I did when I was in private practice, trying to attract clients. For example, I now spend an hour or two every week at a keyboard, cranking out this column twice weekly for Above the Law.
Why do I do the extracurricular stuff, even though there’s no longer any payoff in the form of legal business? I do some things simply to contribute to the community in which I live. I write this column in part because my employer, Aon, is, among other things, the world’s leading insurance broker for law firms. I continue to believe, as I learned in San Francisco a couple of light years ago, that one helps the cause by raising his employer’s and colleagues’ collective profile. Perhaps I help the brokers a little bit by causing a quarter million lawyers to read the name “Aon” twice a week.
Also, although the law department at Aon doesn’t hire lawyers in droves, we do hire occasionally. When prospective employees Google us, it doesn’t hurt for them to see that, if they’re lucky, they might have the chance to work with someone as hip and cool as I am. (And I must admit that, for weird and inexplicable reasons, I also take some small satisfaction in having cranked out these semiweekly ditties.)
Finally, I still have one significant extracurricular chore that’s simply a holdover from my days in private practice. My old blog, Drug and Device Law, attracted the eye of Oxford University Press, which solicited me to write a treatise about how to defend drug and medical device product liability cases. I’ll confess that, after having written hundreds of blog posts about every conceivable issue in the drug and device space, I didn’t have a ton of unpublished ideas that I was itching to put into print in a book. (To the contrary, I’d already published every mediocre thought that I’d ever had, and a bunch more things that didn’t clear even that low bar.)
Nonetheless, back in 2009, the publisher’s invitation was impossible to resist: (1) writing a book is one way to attract clients, which, in the drug and device (and therefore mass tort) field, can be worth a king’s ransom to a law firm, and (2) when Oxford University Press asks if you’ll write a book for its imprint, the correct answer is “yes.” So I enlisted a (very talented) co-author, signed a contract to write a 500-page treatise, and then promptly left the private practice of law ten months later. Even though publication of the book will no longer serve any business development purpose for me, I completed the manuscript. Why? Because I’m obligated to my publisher and my co-author, unwilling to quit a task once I’ve started it, and guardedly optimistic that I’ll get a tingle up my spine when Drug and Device Product Liability Litigation Strategy is released on December 2, and I finally hold a copy of the finished product in my hands.
I guarantee you this: That tingle up my spine will come from a sense of accomplishment, not from a sense of having billed hours.
Mark Herrmann is the Vice President and Chief Counsel – Litigation at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law (affiliate link). You can reach him by email at [email protected].