Biglaw, Billable Hours, In-House Counsel

Why Billable Hours Are Like Clickbait

People like things they can count -- so those things become important.

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dartboard pen inside straightPeople like things they can count.

So those things become important.

Imagine, if you will, two people who write online columns. The first columnist is good. He (or she) has quality working in his (or her) favor. This columnist is smart, regularly says intelligent stuff (thus distinguishing himself from, say, yours truly), writes with flair, and generally improves the state of human knowledge.

The second columnist is bad. He (or she) has nothing to say and takes too many words not to say it. But the second columnist has no shame and attaches enticing headlines to his (or her) dreck: “Pictures of actresses that you just won’t believe!” “The three simple tricks that reduce stomach fat!” “Four lies guaranteed to make you a millionaire!” “Five amazing tricks to improve your sex life!”

Who will the world value?

The second columnist, of course.

You can’t (easily) rate quality. But you can (easily) count the number of people who click through to look at an article. (Okay, okay: You can also look at how long a visitor spends reading a web page. If people average five minutes reading columnist one’s stuff and five seconds reading columnist two’s, maybe you could tell something from that. But bear with me.)

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Because you can count the number of clicks, but you can’t count the quality of the product, people — employers, advertisers, those who matter — will pay more for the poorer quality, but more easily quantified, product.

Why is that like billable hours?

Hypothesize lawyer one, who produces great work. Really great: Innovative arguments, interesting writing, far more likely to convince a judge to rule in your favor.

Hypothesize lawyer two, who bills a lot of hours. This person doesn’t produce anything particularly great, but it sure takes the person a long time to do it.

Who does the firm value?

Sponsored

You can’t count quality. But you can (and firms do) count billable hours. So that’s what firms value.

Presto! That’s why billable hours are like clickbait.

You can tell me that I’m wrong, and that over time quality will out.

Perhaps.

But not quickly.

The person who writes bad columns (or briefs) will insist that the bad columns (or briefs) are good, and most observers won’t take the time (or have the capacity) to tell the difference. Except for observers who are particularly attentive and concerned, distinctions in quality vanish.

Even if, over time, you can observe the effects of quality, that’s unlikely to make a difference. Maybe a great lawyer will win a few more cases over the course of a decade. Maybe clients will care.

But maybe not. Maybe the great lawyer is asked to defend harder cases. He (or she) wins the same percentage as the bad lawyer. That’s a spectacular track record, but who cares? The lawyer’s greatness is showing through, but not in a way that anyone can discern.

I’ve heard several people recently bemoan that, “My firm used to appreciate great lawyers. Now it appreciates only lawyers who bill a lot of hours or attract a lot of business. Quality is virtually irrelevant.”

I feel sorry for those folks. But what’s the world to do?

It’s the siren song of numbers.

We like things that we can count, and quality is not one of those things.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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