Billable Hours, Litigators

Don’t Be Lazy: The Billable Hour Has Survived For A Reason

Probably the biggest mistake most new lawyers make is that they don’t put in the work.

By Matthew W. Schmidt  
on

You’re not overthinking it. You probably can’t overthink it.

Many films have scenes that are instructive for litigators. One of them is Stage Beauty, the Sir Richard Eyres-directed 2004 historical drama starring Billy Crudup as an actor whose career is disrupted by Restoration-era regulatory change. Crudup’s character, Edward Kynaston, had developed a specialization playing female parts in Shakespearean plays at a time when women were banned from the English stage. Unfortunately for Kynaston, the new administration of Charles II suddenly not only allows women to be actors, but bans men from playing female parts.

About two-thirds of the way through the film, famous diarist Samuel Pepys encourages the now-unemployable Kynaston to start playing men’s roles, and tells Kynaston that the women-pretending-to-be-men parts of his women’s roles (as is often typical in Shakespeare’s comedies) were his most convincing. Kynaston then launches into an extended explanation about how those parts were only convincing because they were filtered through the female characters he was ultimately playing. After the speech, Pepys pauses, then only says, “Yes, you’ve obviously thought longer on this question than I.”

As a litigator, all else being equal, the side that thought longer on the question generally wins.

THE BILLABLE HOUR

The billable hour may be the most reviled payment structure in history. Clients hate it because they think it encourages busywork and padding. Lawyers hate it because it encourages toil and spending all night in the office over added value.

But nothing survives as long as the billable hour has without a reason. One of them is that litigation is still, and will always be, a zero-sum game. And in nearly any zero-sum game, if you take two evenly matched sides, the one that puts in more work is usually going to win. Smart clients know that incentives matter, and they want their lawyer’s incentives to be aligned with their own interests. And they want their lawyer to be incentivized to look for one more case, one more angle, or do a little more preparation.

Sponsored

Of course, nothing in the world is this tidy, but the principle holds. First of all, of course, in litigation the sides are rarely evenly matched, either because of the lawyers, the facts, the law, resources, or a dozen other factors. But deciding to take it easy because you think your opponent has a weak hand is almost never a smart move.

And yes, not every extra thing you do will ultimately help. I’ve probably spent thousands of hours preparing some work product or trying some argument or research angle that, with perfect hindsight, we could have done without. But if you’re evaluating decisions solely on their outcome, you’re being as sophisticated as the people who complain that Nate Silver botched his election prediction by only giving Donald Trump a 30% chance of victory. Sure, if your adversary decides not to call a witness at the last minute that you spent days preparing for, you may feel bad. But you (and your client) would have felt a lot worse if the witness went on and you hadn’t prepared.

Obviously, there are diminishing returns and at some point the cost outweighs the benefit. If you’re suing someone over $10,000 and have spent $20,000 after motions to dismiss, something has gone wrong. But in the complex commercial cases my colleagues and I predominantly litigate, every inch counts. And when you’re dealing with real bet-the-company litigation, every inch is absolutely crucial. Will staying up until 3:00 a.m. to make a really amazing demonstrative be the thing the tips the case over to victory? You’ll never know. But would you rather skip it, lose, then always wonder?

DO THE WORK

Back in high school, I read some Princeton Review book on career choices. The section on lawyers (helpfully available online) had a great quote I never forgot: “The most important trait a lawyer can have is a leather-ass. [sic] You’ve got to be able to put your butt in a chair and do the work.” This was good advice. You really can improve most things in law by just spending some more time on them. You can think it through some more, you can give it another proofread, or you can prepare something else.

Sponsored

Probably the biggest mistake most new lawyers make is that they don’t put in the work. They don’t spend enough time adjusting their work product and send something sloppy as a draft. Or they give up on research after finding a few dead ends. They may even think the level of attention to detail expected of them is absurd, since they’re used to lax standards in academia. So they in particular should keep all this in mind.

Older lawyers usually have that attitude beaten out of them eventually, but we can all use a reminder from time to time. So next time you find yourself trying to talk yourself out of doing some extra work, stop and think whether maybe you should do a little more before calling it a day.

Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

Topics

, , , ,