Scott Turow, at the ABA Journal, writes that the billable hour must die.  In his fairly prosaic yet interesting fashion, Turow gives a bunch of really good reasons, though it’s unclear whether he is urging murder or suicide.  You know how these former lawyers who become big shot novelists can be so unclear.

But the point that he makes about inefficiency is important, and far broader than just the billable hour.  As a lawyer spends more time performing a task, he is (theoretically) able to bill the client for more hours worked and hence collect a fee for each one of those hours.  What so bad about this?  Didn’t Abe Lincoln tell us that a lawyer’s time and advice is his stock in trade?  Is Turow a Lincoln hater?

His point is obvious:  If it takes you 2 hours to do something that I can do in 1, and you get twice the fee for it, then you are rewarded for taking longer than you should to accomplish the task.  Most people who bill hourly are well aware of this phenomenon, not to mention the client’s expectation that certain tasks take certain lengths of time.  They know this because they get billed the same number of hours for the same task over and over. 

So hourly billing served to reward the less competent inefficient lawyer and punish the lawyer who improves with experience.  But the reality, of course, is that the billable hours don’t really change once a period of time has been established for performing a particular task.  So the experiences lawyer ends up becoming the lying lawyer or the poorer lawyer. 

As posted here before, I won’t do billable hours.  It’s not fair to the client.  It’s not fair to me.  It’s a sham and a scam, neither of which is the way I chose to practice law.  But Scott Turow’s moral goes beyond the billable hour.  The law is replete with areas that reward inefficiency and punish the diligent.  It’s a problem, particularly if you’re the diligent.

For example, as we all know, procedural laws provide lawyers with time limitations to perform certain tasks, whether it be the demands for discovery, submission of motions or readiness for trial.  The laws create a certain degree of predictability and orderliness in a process fraught with uncertainty.  It’s not that I have a love of time limits, but I have an appreciation of the role they play in the process and I make sure that I work within them.

Shockingly, this makes me fairly unique.  It’s my experience (though I’m sure I’ll hear from someone, probably from Texas, who will tell me that they do too) that most (note, Texas boys, the word “most”, not “all”) ignore them.  They’ve always got a half dozen ready excuses, but the fact remains that they just can’t seem to get anything done on time.  This is particularly true of prosecutors, who believe that they are so busy that they are excused from complying with anything, time limit or direct judicial order.  And, very rarely does anyone hold them to it.

So here’s the diligent lawyer, sending out his demands timely, only to be ignored by the other side.  Sending in his subsequent motions, only to be ignored by the other side.  Staying up late at night during a trial because the paperwork has to be done.  After all, if I didn’t get it in on time, there would be nothing for the prosecution to ignore.

So where are the courts in all this?  Ironically, if I failed to get my papers in on time, I would have a 50/50 chance of some judge jumping down my throat, calling me names and demeaning my ancestry.  In some instances, I might even be precluded from completing the task late, unless I can come up with some outrageous fabrication about dogs and homework (rewarding the imaginative?), 

But when the other side shows up empty handed, they get…an adjournment.  That’s right.  The punishment is more time, while the defendant rots in jail (this is a bit hyperbolic since rarely does a client of mine remain in detention pending trial, but it happens to other lawyers’ clients so I feel comfortable borrowing it).  How’s that for an incentive?  Do it now, or get more time to do it whenever it’s convenient for you.  Ouch.  Hate to be on the receiving end of that rebuke.

But of all the situations where lack of diligence is rewarded, none is more painful than starting trial.  In New York criminal cases, the starting date of trial is one of the great mysteries of life.  Clients believe that lawyers are just holding out on them, but the truth is that we have no clue whether a trial will start today or three months from today.  Maybe the judge is busy.  Maybe the cops are on vacation.  Maybe the ADA is clueless.  It doesn’t matter.  There are a hundred reasons why trial won’t start. 

The judge may have adjourned the matter to a particular date “FOR TRIAL,” as he announces with great pomp and circumstance.  He gives the defendant the Parker warnings (don’t show and trial goes on without you).  The defendant’s adrenalin is pumping.  It’s going to be show time.  Do or die.  And then…

On the return date, nothing.  Maybe it’s the calendar assistant (this is an assistant district attorney who reads the note from a piece of papers) who announced “People not ready.”  Maybe the judge has forgotten all about it and isn’t in the mood to start a trial.  Remember that whole pomp and circumstance thing that shook the poor defendant up?  Well, the appearance before the judge could not be more mundane.

But for the lawyer, it means that the time he spent preparing to start trial is shot.  It means that his plans for the next month are blown.  You see, there’s a lot that goes in to being ready for trial, if it’s you intention to win.  And when I appear in court ready for trial, you can bank on it that I am indeed ready.  My witnesses are lined up and available.  My other cases are covered.  I have prepared and prepared and prepared.  All for nothing.

When this happens, the trial judge will stand up high on his bench, look down on the prosecutor and, in a booming stentorian voice filled with anger and righteousness, announce to the assemblage

“You were ordered to be ready for trial today.  Your failure to proceed is an outrage, an affront to the dignity of this Court and to the Constitution of the United State of America!” 

In a slightly lower tone, but with knitted brow, the Judge will say,

“You cannot play with the life of this defendant as if he is meaningless and unworthy of your time.  You dragged him in here to answer your allegations.  Now you must be ready to prove them or let this man go.  I will not tolerate a government that will abuse its citizens.  CASE DISMISSED!”

This happens.  In my dreams.  Instead of punishing the prosecution for its lack of diligence, it’s disrespect, it’s inefficiency, the judge poses one question:  “What date would you like?”