Articles Posted in Cost Disciplines in Legal

Part 1 of this three-part post described software engineer-turned-attorney Jason Barnwell’s introduction — two months into his first law job after graduating from USC Law School — to the legal profession’s idea of “productivity”.

As the junior lawyer on a deal team, he offered to automate the process of creating and collating the shareholder consents necessary to close an M&A transaction by “some basic scripting”. As he put it in an article published earlier this week: “I was still an adequate software engineer back then”.

My guess is that his skills were in fact more than “adequate” — with four years of software engineering experience in the Bay Area — and a mechanical engineering degree from MIT.

Anyway, Jason Barnwell reasoned that reducing the individual bodies required for this paper shuffling from six down to one would be a good thing. Ditto the fact that the five team members thus freed up would be able to, “focus on other aspects of the transaction rather than walking laps in an ozone filled copy room”.

He was rebuffed — without explanation. Pressing for an explanation he was again rebuffed. Undeterred, Mr. Barnwell resolved to “revisit this for the next M&A deal”.

He remained undeterred until six weeks later:

“I saw the itemized bill for the transaction … There was a line item for my contribution. My hours worked multiplied by my billable rate. My client paid a lot for me to make copies“.

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The legal profession matter-of-factly defines “productivity” as the number of hours an attorney billed the client and then got paid for.

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This is a tale of two definitions. Two definitions of what “productivity” means in the delivery of legal services to a company.

It’s about an MIT-trained software engineer named Jason Barnwell who worked in one of the country’s major corporate law firms right out of USC Law School.

The tale begins two months into his first job with a nationally prominent corporate law firm.

Spoiler alert: In Part 2 we learn that Jason Barnwell later became — and is now — Assistant General Counsel – Legal Business, Operations & Strategy at Microsoft.

But I’m getting ahead of the story.

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Jason Barnwell had been, “staffed as the junior-most associate on an M&A deal advising our client as they sold their business”. He was “naïve” enough — his word — to believe that automating a process in which the law firm deployed six associates and paralegals to photocopy and collate voluminous shareholder consent documents would improve the team’s productivity.

Not to mention, deliver better service to the client.

By writing some basic computer script that was part of his software engineer skill set, Mr. Barnwell’s automation solution would enable one individual to prepare all of these necessary transaction packages — thus freeing up the remaining five team members to do the other tasks needed to close the deal.

For Jason Barnwell — veteran of 4 years of software engineering — getting more done, with fewer resources, in less time, and with fewer mistakes — that all seemed fairly “productive”.

But Jason Barnwell — newly minted attorney with a mere 2 months of corporate law practice — was about to learn that his new profession had a different definition of “productivity” than what he’d been taught at MIT.

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This last of three posts about a 54-page opinion in which U.S. Bankruptcy Court for the Central District of Illinois Judge Mary Gorman explained her reduction of a nationally prominent law firm’s $1.8 million fee down to $670,000 offers a case study of the billable hour’s perverse incentives.

Today I address a case-study-within-a-case-study — a bill for $270,000 within the $1.8 million total sought by the law firm. Judge Gorman considered the wisdom of a law firm’s decision to pursue multiple litigations that — she believed — offered better odds to the lawyers of getting their hours paid than it offered to the client of getting recovery that would exceed those lawyers’ fees.

Judge Gorman’s case-study-within-a-case-study illustrates a critical drawback to use of the billable hour to price attorneys’ work:

Even when the client loses, the lawyers win. 

Except in the unlikely event that the hourly bill is submitted for approval by someone with the legal sophistication — and firmness — of a reviewer like Judge Gorman, who cuts that $270,000 bill down to $80,748. But I’m getting ahead of the story.

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The 54-page opinion in which U.S. Bankruptcy Court for the Central District of Illinois Judge Mary Gorman explained her reduction of a nationally prominent law firm’s $1.8 million fee down to $670,000 offers a case study of the billable hour’s perverse incentives.

Under “General Mistakes and Carelessness”, the Judge detailed important errors in the Law Firm’s fee statement.

Those errors show two consequences of using the billable hour to price lawyers’ services:

First, the “rack-em-up” focus on maximizing hours billed gives lawyers incentive to — knowingly or not — charge clients more than the work calls for.

Second, in the attempt to maximize those hours billed, attorneys can easily — intentionally or otherwise — obscure from the client’s view who-did-what-for-how-much.

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Four points among several Judge Gorman made here:

1. She called out the Law Firm for charging $234,450.50 for work they’d, “either not included in the billing invoices or … never actually earned”. After specific cuts, the Judge reduced the remainder of the $1.8 million requested by 20%. 

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On July 10, 2018 U.S. Bankruptcy Court for the Central District of Illinois Judge Mary Gorman issued a 54-page opinion explaining why she cut a law firm’s requested total hourly fee of $1.8 million down to an approved total hourly fee of $670,000.

Judge Gorman was responsible to approve or disapprove legal fees charged to the debtor by the debtor’s law firm because those fees are paid out of the bankruptcy estate’s assets.

The judge’s explanation of her drastic fee cut offers a case study in the perverse incentives of the billable hour.

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Notes on format and content:

1. The text in this and the following two posts doesn’t refer to the law firm or its attorneys by name — but to the Law Firm, or to Attorney A, Attorney B, etc. This post’s purpose is to make a point about cost control and management of legal work — not to embarrass anyone.

The Law Firm ranks among the American Lawyer magazine’s “AmLaw200” — the 200 largest U.S. law firms by gross revenue and other key metrics.

2. While I don’t wish to embarrass anyone, I do need to substantiate what I say by reference to objective sources. Therefore the law firm and lawyers named in Judge Gorman’s 54-page opinion can be readily identified in it. Also, I consulted other court filings on the electronic docket (pay wall) for In re: Earl Gaudio & Son, Inc. at Case No. 13-90942.

3. Unlike this blog, Judge Gorman’s opinion did not address the wisdom of pricing lawyers’ services by reference to billable hours versus an alternative fee arrangement. To the contrary, when a lawyer seeks approval of legal fees from a federal court, the billable hour is the standard because that is the conventional model of the legal profession. (I followed this practice myself three years ago after winning a judgment for my client in a civil rights lawsuit — because I had to.)

4. My argument is not that use of the billable hour necessarily leads to excess costs and wasted effort — but that it creates incentives that make those bad outcomes more likely.

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I begin with Judge Gorman’s summary offered at the end of her 54-page opinion — with underlined headings that I’ve provided:

Failure to “Focus on this Case as Required”

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