Yesterday, I had an envelope in the mail from my dad. I opened it up to find a photocopy of the “Opening Statement” of the Summer 2009 issue of Litigation, the official journal of that section of the American Bar Association. The Litigation Section’s chair, Lorna G. Schofield, dedicated her essay to an observation of how, like so many industries, the legal profession is being challenged by the rapid innovation of the information age.
As a future lawyer (side note: I sent 12 of 15 law school applications last weekend!), it reassures me that at least the ABA’s leadership has recognized that lawyers, firms, and their clients need to adapt in order to survive. But I found it even more encouraging that Schofield highlighted the need for the entire justice system — especially the Federal Rules of Civil Procedure, which were last updated in 1938 — to be refreshed for the present times. I’d like to highlight a couple of her points and add my own thoughts as well.
The first area that Schofield specifically targets is the billable hour. The billable hour system rewards firms and attorneys for the time spent working on a project. While the rate can vary depending on the type of work performed, the rates typically do not reflect the value added by the work performed. And it doesn’t even really make logical sense, as Evan Chesler noted in Forbes back in January: “If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts.” He went on to propose a system more similar to how a construction contractor operates:
For reasonable periods of time during the life of a lawsuit, say three months at a time, I should do what [a contractor] does: identify the client’s objectives, measure, calculate, build in a contingency and come back with a price. Once the price has been agreed upon, the billable hour should be irrelevant. The client will no longer be surprised by a whopper bill and met by the standard (albeit true) explanation that “litigation is unpredictable.”
Whether this is the approach that wins the day is up for question but, as Schofield concludes, “sooner or later, something has to give.”
Continue reading ‘Rebooting Justice’