The Anatomy of a Billable Hour, Part 3 of 4: “For an Hour, as Measured by the Lawyer”

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dealWIP
Jun 6, 2018 · 3 min read

Billable hour = 1) the work that a lawyer does, 2) for an hour, as measured by the lawyer.

Part 1 and Part 2 of this series.

Humans are not machines. They are not perfectly, or even particularly, efficient when completing work. Nor are they impervious to the temptations of social media, daydreams or cat videos — that is to say, they are not great at staying on task. Because most lawyers are also humans, these imperfections can make an accurate accounting of on-task versus off-task time very difficult for purposes of tracking billable time. The obvious implication for the billable hour is that whatever amount of time lawyers ultimately come up with as “billable” for a given matter is, at least partially, guesswork. In some cases, the guesses might be pretty good. In others, we assure you they are not, particularly when attorneys have billable hour quotas weighing on their minds. We don’t mean to imply that the above facts undermine the ethics of the legal profession — quite the contrary, as lawyers in our experience work very hard to produce fair estimates of their time spent on matters. Rather, we simply intend to point out the impossibility that those estimates are unassailable in their accuracy. They aren’t. And implying that lawyers’ estimates of their billable time have the hope of being accurate is a charade with which lawyers and clients alike have long been happy to play along. In a vacuum (in which corporate profits are soaring, legal tech advances are frozen and clients are blissfully ignorant), things might even be able to stay this way forever.

Alas, we’ve yet to find that vacuum. And, online and offline distractions and shoddy guesswork aside, there is another psychological force at play that may skew the measure of value per hour delivered by a given attorney. To use an example, in taking a shower, and thereby performing the task of bathing with its standards and obligations (shampoo, soap, etc.), there is probably some normal amount of time that we could establish that, all things being equal, is the amount of time it should take to complete the task of showering. But the time it takes for any one person to complete the task of showering can vary, sometimes dramatically, depending on any number of factors that could cause the person to hasten or slow his shower pace. If our person has awakened 15 minutes late on the day of an important morning meeting, his shower may take 90 seconds; if our person is on vacation in the Bahamas and has put his work phone on airplane mode, his shower may take an hour.

The foregoing examples are intended to illustrate Parkinson’s law, understood as saying that “the amount of time that one has to perform a task is the amount of time it will take to complete that task”. You’ll take as long to shower as you have to shower. The implication of Parkinson’s law for the billable hour is that, for a given, fixed scope of work, the input of time required to perform that work expands to fill the full time available for its completion. Taken to its logical end, Parkinson’s law implies that lawyers who are relatively slow during a given stretch of time may tend to massively inflate bills for work performed during such time, even if that inflation may be subconscious. At any given time a lawyer may be feeling more like the person who woke up late for an important meeting or the person on vacation in the Bahamas. Unfortunately for clients, service quality and legal fees may vary accordingly.

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