Why lawyers in practice have to be mindful of time—especially their billing time
Marcel Strigberger.
This is as good a time as any to discuss time. As Benjamin Franklin said, “Remember that time is money”—but I won’t waste any time discussing his kites. What does time mean to lawyers? Billable hours.
As many of us in the profession say, “All we have to sell is our time.” The question then becomes, how seriously do we each take this precept?
I once had lunch with a colleague, Barry, who was of my vintage and level of practice. I felt relaxed and asked him to spend a few extra minutes with me enjoying a second cup of tea. He looked at his watch and told me he billed his clients $350 per hour. He said a second cup would take 10 minutes to drink, and therefore it would cost him about $60. He simply couldn’t afford it.
I then tried to make the situation more palatable for him.
“Barry, your partner gets 50%?”
“Yeah, that’s true.”
“So the tea will only cost you $30.”
He nodded in approval.
“Of the money you earn, you pay about 50% for taxes?” (We in Canada get soaked for taxes.)
“Uh-huh.”
“So it’s really only costing you about $15 for that second cup?” (My Socratic reasoning was winning out.)
“But it would still cost me $1.50 for the tea.”
I agreed and added the $1.50 to the $15; this meant a total of $16.50 for that second cup. I couldn’t dispute facts.
“And in order for me to earn $16.50 net after taxes, I’ve got to bill $33.”
I couldn’t have agreed more.
We both noticed a student sitting next to us having tea, and it was presumably costing him only $1.50. Barry and I soon concurred that we would have to pay over 20 times this amount for a second cup of tea. We both envied that student.
I quickly took a sip of my first tea, and we stormed out of the restaurant. We both now clearly understood and appreciated the motivation of those American colonists who almost 250 years ago instigated the Boston Tea Party. I wondered whether any of them were lawyers.
As lawyers in practice, we have to be mindful of our time.
And what is our routine unit of billing time? One-tenth—.1—of an hour. Is it metric? Not exactly, because that works out to six minutes. This unit always bothered me. Is it fair to the client? What if your phone conversation takes four minutes? Do you still bill for six? Let’s imagine you go to an expensive chocolate store. The clerk puts a few premium truffles on the scale. They weigh 12 ounces, but she charges you for one pound saying, “We sell these by the pound. That’s close enough.” Would that be good business?
At least you would get to see the evidence on the scale, unlike a lawyer’s bill, where the clients simply have to work with the honor system, trusting it to be accurate and fair.
I knew another lawyer, whom I’ll simply refer to as “X.” If he ever reads this, he’ll know who he is. X used to bill rather creatively. If he called someone and reached the person’s voicemail, he would bill the client .1. If, say, the client returned his call and left X a voicemail message—because X was not available—that was another .1. Nothing was achieved for the client. Returning to the chocolate analogy, that’s like the store clerk saying, “Those truffles aren’t available today. That will be $43, please.”
I found out about this lawyer’s billing practices during an assessment of his account before a court assessment officer. This is a procedure in our courts allowing scrutiny and review of a lawyer’s bill. We assessed X’s bill to my client (by then X’s former client). The officer slashed X’s bill big time, finding other irregular and unscrupulous time padding, such as travel time to walk over to the courthouse. I was so pleased with the assessment office’s decision that I was tempted to get him a box of chocolate truffles. It probably would have been OK; whatever the cost, I would not have put it on my client’s tab.
But we lawyers can also be bitten by our clients who don’t value our time. A lady who separated from her husband once asked me to meet with her regarding her situation. She pleaded to meet in the evening at her suburban house because she had two small children and it was difficult for her to travel downtown to my office. I attended as requested and spent two hours reviewing her case. She ultimately did not retain me, but I sent her a bill. It was for 2.0 (nothing at all for travel time). She refused to pay. When I asked her why, she noted that she was surprised I even billed her, saying, “This was just a getting-to-know-you meeting.”
I thought this added a new dimension to the concept of lawyers’ billable time. I never pursued her further, though I could have gone the court assessment route, available to both clients and lawyers. I doubt that the assessment officer would have reviewed the billing evidence and concluded, “I’m not allowing these two hours at all. Pure gouging. Who does he think he is, charging this poor woman? Shyster! After all, this was just a getting-to-know-you meeting.’”
I will note that lawyers’ fees have come a long way over time. Apparently, in ancient Rome, legal fees were originally banned for some reason. In other words, lawyers earned for their services about what I did with that aforementioned lady. According to Wikipedia, Emperor Claudius lifted the ban and lawyers’ bills had a ceiling of 10,000 sesterces. But before you say “wow,” a Wikipedia entry reads, “This was apparently not much money. The Satires of Juvenal complain[ed] that there was no money in working as an advocate.”
I certainly felt that way after that getting-to-know-you meeting.
I’m retired from practice now, and my friend Barry is no longer around. I certainly enjoy the luxury of having that leisurely second cup of tea. I often wish, in retrospect, I had allowed myself that indulgence more often back then. It would have been time well spent. And I certainly would not miss the $33 now.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. Read more of Strigberger’s work at marcelshumour.com, and follow him at @MarcelsHumour on Twitter.
