Covering the Front and Back Pages of the Newspaper
January 12, 2009
LAW: Billable Hourly
The American Lawyer continues that hardy perennial of legal journalism, "the death of the billable hour is at hand!", with a look at some clients ditching hourly billing in the UK. But even the article admits that replacing the billable hour requires swimming against the tide in the UK:
In the United Kingdom, lawyers and clients have never had the same all-consuming obsession with hourly billing as their American peers. Still, over the last 20 years hourly rates have become the dominant currency here as well...
As I have argued before here and here, while it's true that lawyers and clients alike tend to despise hourly billing (albeit for different reasons), at the end of the day, (1) it persists because you can't replace it without alternatives that have serious potential problems of their own, and (2) no matter how creative lawyers may be in proposing alternative billing structures, they will only catch on if clients provide the impetus for change, which in turn will happen only if clients are comfortable that they are able to meaningfully evaluate the cost-effectiveness of lawyer services, which most clients can do with hourly bills from long experience. The vast amounts of ink spilled on this topic every year almost always fail to grapple with those basic dynamics.
Edmund Burke, the great conservative theorist, famously remarked that "[a] state without some means of change is without the means of its conservation," and that's as true in the law or any business as it is in government or culture - an attitude that all change is always bad is a very dangerous one. But the fact remains that in trying to change any entrenched practice, you have to start by asking why things are the way they are and how your proposed alternative is going to deal with those conditions. We'd all love to see the hoary old billable hour interred, but legal journalism that advocates change in the industry without grappling with those realities doesn't end up accomplishing very much for the profession of law.