October 2017

Decline of the Billable Hour

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Do alternative billing arrangements make sense? Is there an appropriate way to charge clients other than the billable hour?

I don’t think you can speak of “the law” monolithically. When it comes to “lawyer as scrivener” a law firm should, in 95% of the cases, be able to quote a fee for a project. Keep in mind though, that this is where AI research is most active. Soon drafting a document will be coding standard responses and fees, except for software licensing fees, will drop accordingly.

What separates “Big Law” from the solo is the large firm’s precedents library and its ability to leverage its experience with past similar transactions.

American lawyers, at least, usually don’t know what a precedents library is, never mind trying to monetize it. (“You mean a forms book?”) Even the Dewey, LeBoeuf bankruptcy trustee made no effort to monetize these in the bankruptcy. When do alternative billing arrangements make sense?

When it comes to “lawyer as actor” (for lack of a better term); when a lawyer is handling a contentious matter; or trying to get a result from a regulator: the lawyer can only play one side of the chessboard.

If you let me play both sides I can make the game as long or as short as you like and charge within your budget. But if I’m playing only side only, I have no control of what the other side may do; I have to meet each move with a counter-move and costs spiral out of control. Here there is no AI, no proposals to reform the system, just weeping and gnashing of teeth.

Still, there are ways to seek economies when dealing with the “lawyer as actor.” All too many lawyers begin the game by squabbling like Bobby Fischer about lighting, noise in the auditorium, the type and placement of chairs, etc. before actually sitting down and playing the game.

If I know that my client can be served with process
even Osama bin Laden was served (substitute service=service)why don’t I agree to waive service? The federal rules hold out a carrot for those who cooperatesixty days to answer a complaint instead of thirty.

State practice is unnecessarily multifarious. In the state courts, lawyers must think that clients are ignorant. Instead, lawyers believe that you
must (really?) explore all avenues that might lead to winning the case.

So the response to a summons and a complaint is a motion to dismiss. The motion to dismiss is set for hearing, three months in the future. There’s a ten minute hearing (for which the attorney bills two hours: travel to the courthouse, waiting time while all the other ten minute hearings take place, drafting an order and then driving to the office to write a letter to the client saying, “a hearing was held, we were ordered to answer, my secretary will be sending over an initial discovery package along with a draft answer to the complaint. Oh, and my bill for today.”

In some jurisdictions, the lawyer will bill his secretaries’ time as if it were his own. I know that lawyers are not supposed to do this, but they do. Until the FBI brings a few mail or wire fraud prosecutions (given my antipathy towards an unconstitutional national police force, this should really be managed by the Florida Department of Law Enforcement (state police forces are not unconstitutional) these practices will continue.

[Parenthetically, what is wire fraud? Tell a lie for gain and use a computer or a telephone. What is mail fraud? Tell a lie for gain and lick a stamp.]

The result of all this running around is that the lawyer pulls out a form answer, fills in the blanks, drafts a few paragraphs, and (these days) e-mails it in.

In the meantime, the client has paid $1000 for nothing. Woe be to you lawyers: increasingly, clients know that they have paid for nothing and are upset about it.

I cannot help but think that one of the engines pulling arbitration is an effort to halt uneconomical, meaningless squabbling before the courts. The movement towards alternative billing arrangements for “lawyers as actors” is really an effort to get the cost of contentious matters under control.

In the future, lawyers who fail to control these costs will lose business to arbitration practice as well as disintermediation software that somewhere a coder is writing.


The screed and opinions published here are my own and not that of any other party. Yes, I know, some answers cannot be reduced to a form. The chances of a high-schooler discovering a new perspective on Salinger’s Catcher in the Rye while writing a paper for English class are as slim as the possibility that a supermarket slip and fall will be unique. For every cup of McDonald’s coffee that causes third-degree burns, there are millions that are only quaffed.

Let's Hope Women Make Driving Safer in Saudi Arabia

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The news that a recent decree by King Salman will finally permit women to drive in the Kingdom is good news for two reasons: first, while Saudis are perhaps the most friendly, hospitable people on the planet, Saudi men are perhaps the world's worst drivers. Accidents in Saudi Arabia are frequent and horrific. Traffic rules are not enforced. Traffic safety cameras are attacked and vandalized.

It's not unusual to to see traffic cars tailgating each other at speeds exceeding 140 km/hr as if they were on a Nascar track. A road's shoulders are routinely used for passing at those speeds and faster. Left-hand turns are routinely made from the right lane on multi-lane roads. Exiting to the right on a limited access highway, a driver in the far left lane will think nothing of crossing two lanes of traffic just before the exit, in a manuever known as the "Saudi Sweep." 

Keep in mind that because alcohol is prohibited in the Kingdom, it is rarely a factor in these horrific accidents. The critical factor is almost always failure to maintain a proper distance, failure to yield and of course, grossly excessive speeds. 

Outside of Saudi Arabia, Saudi drivers have a good reputation. They are competent and follow traffic rules. The dangerous behaviors they routinely undertake in their country are never practiced in other countries. They know how to obey traffic laws, they know that in other countries it's not "anything goes" on the highways. 

Not a few Saudi women have already obtained driver's licenses, both in neighboring countries and the West. No one has complained that these women lack driving skills. 

The challenge will be to see if the presence of Saudi women on the road will have a civilizing effect on Saudi male drivers. Will the presence of Saudi mothers, wives and daughters on the road cause their sons, husbands and fathers to behave as they know how to do when driving outside their country?

One can only hope. 

The second reason has to do with prejudice and reasoned discourse about Saudi Arabia. All too often, that discourse ends the minute someone points out that women cannot legally drive in Saudi Arabia.

Once upon a time, discussion of the American presence in Panama began and ended with the "well-manicured" lawns in the Canal Zone.

In the future, discussions about Saudi Arabia and the status of women will not be reduced to an inaccurate symbolic subject.

For more information about driving in Saudi Arabia, see Driving in Las Arabias" by F.Phlegmton (https://www.amazon.co.uk/d/Books/Driving-Las-Arabias.../B005D3GI5A). And no, I didn't write this book.