Imagine a job where you would get paid to solve puzzles. You would be required to identify issues, devise solutions and outsmart your opponents. There would be an opportunity to help advance social causes, fight for what you believe, and affect material change. You would likely earn a good salary, too. Sounds pretty good, right?
It did to me and, so, I went to law school. Once I graduated and joined the ranks of the Big Law world, I was somewhat surprised to learn that many young lawyers dislike their jobs. Eight years after graduation, most of my law school friends have quit law firm life: they have moved in-house or they are doing something tangentially related to law or they have quit the legal profession altogether.
Why do so many young lawyers (particularly those working in the Big Law world) dislike their jobs? Although there are a number of contributing factors, part of the answer may lie in the way that lawyers bill their clients.
The billable hour is the most widely used billing system in the legal world. The question should be asked: is the billable hour good for the very people who perpetuate its existence?
Rewarding time spent, not value delivered.
The emphasis on time above all else fails to properly reward creativity, ingenuity, or effectiveness, all of which are far more important to the making of a great lawyer than an ability to log hours. Leaving the world of professional services aside, there are few real-world examples where the result matters less than the time spent achieving it. It would be silly for a student who earned a C+ on an exam to request a grade change because she spent more time studying than the student who received an A. After a lifetime of being rewarded for results achieved, it can be a rude awakening for a new lawyer to learn that it is not her actual contributions that count, but, rather, how many hours of her life she is willing to devote to billing.
The pressure to spend more (and more and more) time billing.
Under the billable hour model, a law firm's revenue can only increase in one of two ways: higher hourly rates or more hours billed. Although hourly rates tend to increase every year, the market sets a ceiling. This leaves time billed as the only variable that can realistically change, which, for many firms, translates into an overriding emphasis on hours. Lawyers and, particularly, associates, feel pressure to spend an increasing amount of their time working, leaving less time for family, friends, and all other activities that contribute to a lawyer's sense of balance and well-being.
Devaluing non-billable time.
Just as importantly, billable work tends to be the only work that really counts from many firms' perspectives because it is the only work that directly contributes to the bottom line. Although many firms pay lip service to the need to spend time on non-billable work, many lawyers feel that their advancement within those firms is based largely on the hours they actually bill to paying clients. A failure to focus on non-billable time results in lawyers spending fewer hours on their professional development (e.g. marketing, business development, etc.) and feel-good activities (e.g. pro bono work, mentoring, etc.).
For junior lawyers, the problem is magnified. As clients increasingly refuse to pay for time spent training, junior lawyers receive less exposure to the interesting aspects of cases (e.g. attending court and client meetings – just to observe) and spend more time doing grunt work. Junior lawyers often leave law school intent on solving puzzles only to discover that a large portion of their early career will instead be spent reviewing documents in one form or another.
At some point in a lawyer's career, however, the rules of the game change. Most partners are not expected to simply log hours; rather, they are expected to bring in new clients, keep old clients happy, and deliver results. As such, the failure to develop the skills necessary to succeed in these tasks is problematic, and probably more so today than in the past.
Unlike the good old days, in many of today's law firms, associates can toil away for eight years, prioritize work over everything else, and still fail to make partner. Associates who have been passed over slowly discover that without a book of business, the expertise to handle a file from beginning to end, or many business development skills to speak of, the world is not full of endless possibilities.
Increasing competitiveness in all of the wrong ways.
Making partner is harder than ever and that leads to competition amongst associates, which is not necessarily a bad thing. If time, however, is what counts, and Jimmy down the hall is willing to stay until 3 a.m. every day, succeeding at a firm turns into a race to the bottom of quality of life. For those lawyers who are ultra-competitive, who perform substantively better than their counterparts, but are unwilling to out-bill the Jimmys of the world (of whom there are many), this form of unwinnable competition is very demoralizing.
The billable hour disproportionately hurts women.
The prevailing view is that women still perform more unpaid household work than men. If time is the main metric by which a law firm judges its lawyers and women have statistically less time to spend at the office than men, aren't women trying to compete in a system whose rules are rigged against them?
While the billable hour is certainly not the only reason why women are failing to make partner in the same proportion as found in graduating law school classes, it is one that should not be ignored. I am not suggesting that the billable hour hurts all women more than men, simply those who spend more time at home and could out-compete their male counterparts if judged on metrics other than time spent.
This is not a call for lawyers to work fewer hours. The job of a lawyer under any billing model will always entail hard work and long hours. For many, however, it is not the sheer number of hours spent working that matters most; rather, it is their overall level of job satisfaction that counts.
Perhaps changing the billing system will change the focus. Lawyers will leave work thinking more about their results and less about the extent to which they stamped their time cards. They will be expected to develop the skills necessary to turn them into great lawyers and will be rewarded for doing so. Staying at the office until 3 a.m. will no longer be a badge of honour; solving problems at record speed will be. A lawyer's worth will be measured by their output. That could make all the difference.
And why should law firms care how happy their lawyers are? Well, that seems obvious. Law firms are only as good as the lawyers they retain. Law firms should be spending more time figuring out how to keep their most valuable assets happy.
Allison Speigel is a commercial litigator with Speigel Nichols Fox LLP, a boutique commercial litigation law firm.