In the most recent Blawgreview #109, Enrico Shaefer makes it painfully clear that hourly billing is fraught with problems, primarily stemming from the sytemic “padding” of bills by lawyers.  I always thought that was the case, but I really can’t personally say.  I don’t do it.

Of course, in criminal defense law, the issue is a little different.  For one thing, we evaluate a case up front and require a substantial retainer.  Why?  Well, how can I explain this nicely.  First, sometimes our clients are criminals, and hence a tad short of trustworthy.  Second, our clients can be mercurial, and their desire to pay fluctuates with their impression of how the case is going.  Third, “stuff” happens, so even the best intended clients may find themselves about to go on trial and suddenly lacking in the wherewithal to carry the load.  For obvious reasons, this creates a rift between lawyer and client that cannot exist if the lawyer is to maximize the potential of winning.  The lawyer must focus on one goal, and one goal only.  If his focus is split between the client and his fee, there will be problems.

As for me, I have a somewhat different reason that pushes me far, far away from hourly billing.  I do not want someone who has no idea how much time and effort I put into a defense to start questioning why I spent 7 hours “thinking”.  That’s right.  I spend time thinking.  It is, without a doubt, the most important time I spend on a case.  It’s how I develop a fully conceived strategy.  It’s how I consider, and accept or reject, the plethora of options available to me and my client under the unique circumstances of the case. 

And I truly view every case as unique.  Some lawyers, perhaps even most, see cases as garden variety animals, to be disposed of in the usual fashion.  Call them yeomen, routine, whatever.  They are not necessarily wrong, because many cases share significant commonality.  But it’s not just the case (or even just the client) who matters.  If there’s nothing strikingly unusual about the big picture, then turn to the details.  No two cases are ever exactly alike.  You just need to figure out what makes them unique.  By the way, I’m not giving away any secrets here.  I’ve taught this in CLEs for years.  And yet lawyers still can’t be bothered to think outside the box.

And so my issue with hourly billing is just the opposite of Enrico’s.  I find myself putting in far more time than I charge for.  And I want to have the freedom to put in as much time as I need without anyone asking me whether I can devise a winning strategy in 2 hours instead of 5.  Can’t you research faster?  Can’t you do without revisions of the brief?  Sure, I could.  But I won’t.  It’s my reputation on the line in court, right next to your life.  I don’t plan to stand there and watch either one go down the drain because you want to cut back my hours. 

Ironically, the best lawyers are often a bargain because of this.  First, we are capable of doing our work faster and better in many instances, as our experience enables us to accomplish tasks without reinventing the wheel.  Second, our skills enable us to find answers to difficult questions faster and better than those whose simply don’t have the skill level necessary to ever find the right answer.  

Of course, providing the best possible chance of a positive outcome is itself worthwhile.  Consider, would you rather pay half the price for a lawyer who will give you little chance of prevailing, or twice the price for a lawyer who will give you the maximum chance of prevailing.  The former is flushing money down the toilet.  While the latter provides no guarantee, at least you’re paying for something of value.

This is a distinguishing aspect of the work performed by all good criminal defense lawyers.  No, we don’t charge hourly.  But we never shortchange the hours put into a case.  This is not because we love our clients so much (which no doubt will cause some clients enormous angst since they so desperately want to be loved), but because our internal motivation to do nothing short of the best possible work drives us to do whatever we must.  I wonder how many hourly billers can say that?