No Code For Thinking (Update)

Thinking            1.3 hours

Try it and see what happens. As my clientele shifted from good honest criminal defense to white collar defense, there was a seismic shift in the manner of compensation. No longer was I discussing fees with my clients, but rather with an accounts payable clerk in the bowels of some multinational corporation.  I learned that my ability to get paid was dependent on my ability to submit a bill that satisfied a clerk’s checklist. 

The clerk couldn’t care less how hard I worked, or how successful my efforts, or even how many hours I billed. But they did care, and care greatly, that my billing conformed to their vendor requirements.  Bill wrong and it could be months, if ever, before I received payment. Bill properly, meaning the way they want you to bill, and the checks would come like clockwork. Smoooooth.

But while billing for research, conferences, even reviewing the file, was happily (and mindlessly) embraced, billing for the time spent thinking and chances are less than slim that the beautiful sound of the approval stamp hitting paper would be heard.  You doubt this? Try an experiment.  Bill ‘em for thinking.

Thinking.  There’s no code for that.

Why would that be?  Thinking is a good thing. I try to do it whenever I can, and most of the time, it turns out to serve my client’s interests quite well.  If I was a defendant, I would want my lawyer to do some serious thinking. In fact, I would demand it.  So why, I pondered, was it not an acceptable basis to bill, and an even less acceptable basis to pay.

Ironically, the notion is that we bill for things we do, requiring some amount of physical exertion, no matter how little (or how brief, as anyone billing in six minute increments can explain).  We bill with vaguely active verbs, like research. What does that mean, reading a case or a statute? Well, sure. Searching for cases, whether online or using the dreaded dead tree books?  Absolutely.  And if, in the course of researching, we spend a quiet moment or two pondering whether the caselaw supports our position, well, that’s included.  Nobody would separate out that time for a line item called “thinking” in the middle of researching. That would be crazy, billing suicide. Worse still, that would be a bill that was never paid.

This not only is misguided, but inherently self-defeating.  It’s great when you have every legal answer to every legal question at the tip of your tongue, fully conceived winning strategies, with up-to-the-moment string citations, at your beck and call.

Do you have this?  I don’t. I may well have a sense of what I think is workable, if not a fabulous approach, but I can’t be sure until I’ve given it thought. Sometimes, a great deal of thought.  And when I do, something miraculous often happens: I come up with far better ideas than I had before thinking.

When I charge a flat fee, nobody cares if I spend a day thinking. Or for that matter, doing a day of research only to come up empty and flush it down the toilet. Think all you want, I’m told. Well, not really, since nobody believes you actually do anything that doesn’t happen in front of them or doesn’t produce a tangible work product.  But as long as you don’t ask to be paid for the time, they’ll pretend it’s cool with them.

Which is the heart of the problem. Bill for thinking and nobody can tell if you actually did it or just played Angry Birds and billed for the time. It’s a matter of trust, and lawyers aren’t nearly as well-trusted as some of us think we should be.  Hard as this may be to swallow, not everyone believes what we say. I know! And lawyers sound so incredibly trustworthy in their website and twitter biographies. 

As long as clients are unwilling to believe what we claim, we’re forced to choose between two unacceptable options. We can either not think, or we can bury our thinking under line items that clients are willing to pay for, although they may not honestly reflect what we did to justify billing out our time.  Which of these options brings a smile to a client’s face?  Clearly, the latter is preferred by accounts payable clerks everywhere.

This has to change. Lawyers need to think, and think pretty damned hard, if they’re to do the work expected of them. No matter whether a client, or an accounts payable clerk, thinks that you went to law school and passed the bar, and therefore ought to have every answer to every question in every case under every circumstance at your fingertips. The practice of law doesn’t work that way. Developing a theory of the case, the strategy, the tactics, isn’t something that was taught in a classroom, but developed by the hard work of thinking. One size does not fit all.

It’s time we admitted that this work requires thought. It’s time we gave it the thought it deserves. And it’s time we told the people with checklists, be they our clients, their employers or the grocery clerks in accounts payable, that in order to fulfill our obligation to zealously defend our clients, we must think. And that our time thinking is every bit, if not more so, compensable as our time on conference calls. 

And it’s time we conducted ourselves honestly in all matters, so that the idea of billing for something that doesn’t produce a tangible product or fit neatly in an accounts payable clerk’s coding scheme, isn’t a red flag. 

There is no shame in thinking, or expecting to be paid for thinking. There’s a whole bunch of shame in the failure to think, and the fact that if we billed for it, clients would think we were scamming them blind. Let’s get our priorities straight.

Update: I apologize for my being so terribly unclear in this post, as reflected in the comments offering guidance in how to circumvent the billing connundrum by using alternative language. I thought I was brutally clear that the issue wasn’t mastery of the art of billing and circumvention, but the necessity for doing so rather than just billing for the truth, and the fact that “thinking” is frowned upon.

While I appreciate the efforts of those whose approach is limited to the concrete, my concerns are more conceptual.  As I was unable to effectively communicate this to so many, my sincere apologies.



12 comments on “No Code For Thinking (Update)

  1. Mark Mason

    A lawyer friend once told me that a lawyer he had worked for billed the time he spent thinking under “Strategize”. Or to steal from SNL, how about “Strategery”.

  2. Dan

    Use analyze or analysis instead of thinking, e.g., Analysis of potential liability- 1.3, or analyzed trial strategies- 2.7. Thinking you can do on the toilet. Analysis suggests there’s a pen and maybe a graph.

  3. Noah

    Finally, an area where my big-firm experience is relevant :-) You have the answer already (as I’m sure you know), but what they want is the about-what part of the equation, and they would prefer a different verb, as Dan mentioned.

    Most of the time “Developing a theory of the case, the strategy, the tactics” should be fine.

  4. SHG

    As I said in the post, there are any number of ways to slip it in to the billing.  The question was never how to do it, but why we have to conceal thinking by hiding under another word.

  5. Dan

    There’s a sense out there among some people that being a lawyer is a form of clerical work- please write up my arguments with your blue piece of paper on the back and your wherefore’s and your notice ex post facto in the right place, and get it done. That, they’ll pay for, but to pay someone for thinking suggests that you’re paying someone who knows something that you don’t know. And nobody wants to admit that.

  6. Victor Medina

    It’s worse than that.

    To pay someone for thinking is admitting that you’re paying someone who doesn’t know the thing you don’t know either.

    People really don’t want to admit that.

  7. Bruce Godfrey

    Thinking with a pen in your hand is drafting. If you create a memorandum of the thoughts a long the way and call it “File Memorandum on _______ n- Draft and Edit”, it should work.

  8. Turk

    I always wondered how the billable hour folks accounted for the time at 3 am when they were staring up at the ceiling obsessing about the next day’s cross-exam or trying to figure out what land mines lay ahead that had not yet been seen.

  9. George B

    Plagiarize,
    Let no one else’s work evade your eyes,
    Remember why the good Lord made your eyes,
    So don’t shade your eyes,
    But plagiarize, plagiarize, plagiarize -
    Only be sure always to call it please ‘research’.

    Tom Lehrer….

  10. Martin Budden

    It’s not just lawyers who have problems recording time spent thinking. Here’s an old Dilbert cartoon:

    http://dilbert.com/strips/comic/1995-09-15/ [I presume you will delete the hyperlink, but I've included it in case you want to look at the original from which I've quoted ]

    “Here’s my timesheet, filled out in increments of fifteen minutes.

    As usual I coded the useless hours spent in meetings as ‘work’, whereas the time I spent in the shower designing circuits in my mind is ‘non-work’.

    Interestingly the time I spend complaining about my lack of productivity is considered ‘work’.”

    [Ed. Note: To prove that consistency is the hobgoblin of small minds, I've left the link in. Hah!]

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