Complex litigation is not what it used to be. There was a time when it consisted mostly of working with rooms filled with file cabinets which in turn were filled with paper documents, marking our places with paper clips before post-its were invented, using hard cover reporters to conduct legal research, and drafting briefs and preparing witness examinations with legal pads, pen and ink. We were hired because of reputations for excellence, and cost was at best a secondary consideration. Not only were we paid for all of our time and expenses, without discounts, but if we got a great result in a particularly important case, we might even get a premium above our hourly rates. While the hours were long, those of us who strive for excellence were in perfect heaven.
How things have changed. The raw materials of litigation are now electronic and data-driven. Teams of contract attorneys or paralegals are hired to pour over thousands upon thousands of emails and other electronic documents looking for relevant information and screening for privilege. There is more to review because more is generated in this information age. Pleadings, correspondence and key documents reside now on hard drives and intranets, available to the attorney at the touch of a few key strokes. We write and communicate with each other on our computers. And cost is always an object. The lead attorneys on a case spend a much greater proportion of their time estimating the cost of the various tasks of litigation, justifying each task, reviewing budgetary progress and, in some cases, trying to understand and explain to clients why the actual time and expense incurred has exceeded the estimate. Those of us in charge of a case are as much business managers now as we are lawyers.
I find no joy, and much annoyance, in these administrative efforts. In the course of working to win a case for a client, managing a litigation budget is at best a necessary evil and an unwelcome distraction. I go through the process because I must, and because I recognize that my competitive concept of winning (e.g., winning a trial or appeal, prevailing on a dispositive motion) is and must be secondary to the client's business objectives (i.e., obtaining a result, through litigation or settlement, that has substantially more business value than the legal expense and internal resources incurred in obtaining it).
The most overall satisfaction I obtain as a litigator is, of course, in helping clients achieve their goals. But I derive the most day-to-day enjoyment from the job well done - the expert deposition where I was better prepared than the opposing expert, the hearing in which I had command of the facts and the law and was able to make a better reasoned presentation to the judge than my opponent. The quality of the effort - whether it is the written brief, the cross-examination, or the oral argument - sometimes matters more to me than being paid for achieving it. I'm the same way when I write a blog post (though I spend much less time on it than on my real work), and I can see in myself the compulsion to quality that my father had in his very different line of work (and that my daughter also seems to have inherited). But I also care about my reputation. When I appear in court, my primary goal is to do an excellent job for my client, but I also recognize other audiences - the judge, the other lawyers in the courtroom, even the opposing side - whom I want to perceive me as a lawyer with high standards, who can be counted on to make a strong presentation based on good reasoning, honesty and diligent preparation (all of which redounds to the benefit of the client I am representing in that case and other clients I will be representing in other matters). Although I recognize these qualities in myself, I do not pretend that they are unique or even unusual; most of the litigators I have had the privilege of working with, and many whom I have litigated against, have the same compulsion for excellence. The lawyer's goal of performing at a high level of quality is a very real and relatively common trait that tends to get lost in the legal industry's focus on more quantifiable concepts like profits per partner.
The question for all of us similarly motivated attorneys is how do we reconcile our passion for producing consistently excellent work with the client's business objectives of balancing value received with value spent? I once thought that in most large and complex cases, this would not be an issue - the value of winning would so obviously and significantly exceed the cost of doing so that clients would understand the reasonableness of unleashing the attorneys to do their best work. While this remains true in some bet the company, high stakes cases, it is the increasingly rare exception, and never the rule. Yes, clients tend to hire the lawyers who are the best and most experienced in the type of litigation that they face. And yes, clients expect and deserve the best work from those lawyers. The good lawyer's drive to excellence, and the client's business objectives, are always to a great extent aligned. But they are not perfectly aligned, and lawyers and clients must continuously search for ways to improve the alignment between their sometimes conflicting interests. (I have not included here the very important interest of lawyers in law firms for monetary gain, which clients often perceive as the principal driver in lawyers' efforts. While for many attorneys and law firms profits can, unfortunately, be more important than the drive for excellence, this article is meant to address a different issue, one that may be more real than recognized.)
There is no simple solution to this problem, and I do not claim to have solved it, but a few thoughts come to mind as I continue to wrestle with it. First, the problem can only be addressed by altering the traditional way that clients pay for legal services. As long as lawyers bill by the hour, there will be tension in finding the optimal level of work to satisfy the client's need for value while also allowing lawyers to do their jobs well. Alternative billing and thoughtful project management will be key. Second, lawyers can't find this balance themselves. We need to rely on trained professionals to assist us in pricing and managing projects, and who can free us from the administrative tasks that detract from our ability to do the work the clients have hired us to do. Third, short-term profits must take a back seat to long-term investments of time and resources in our law practices meant to enhance quality and affordability. And finally, lawyers need to be thinking and talking about these issues, and not hiding their heads in the sand, hoping the problem will go away and wondering why their business is dropping off. As one author might say, the cheese has moved (or, perhaps more accurately, is moving), and we must now move to find it.
How things have changed. The raw materials of litigation are now electronic and data-driven. Teams of contract attorneys or paralegals are hired to pour over thousands upon thousands of emails and other electronic documents looking for relevant information and screening for privilege. There is more to review because more is generated in this information age. Pleadings, correspondence and key documents reside now on hard drives and intranets, available to the attorney at the touch of a few key strokes. We write and communicate with each other on our computers. And cost is always an object. The lead attorneys on a case spend a much greater proportion of their time estimating the cost of the various tasks of litigation, justifying each task, reviewing budgetary progress and, in some cases, trying to understand and explain to clients why the actual time and expense incurred has exceeded the estimate. Those of us in charge of a case are as much business managers now as we are lawyers.
I find no joy, and much annoyance, in these administrative efforts. In the course of working to win a case for a client, managing a litigation budget is at best a necessary evil and an unwelcome distraction. I go through the process because I must, and because I recognize that my competitive concept of winning (e.g., winning a trial or appeal, prevailing on a dispositive motion) is and must be secondary to the client's business objectives (i.e., obtaining a result, through litigation or settlement, that has substantially more business value than the legal expense and internal resources incurred in obtaining it).
The most overall satisfaction I obtain as a litigator is, of course, in helping clients achieve their goals. But I derive the most day-to-day enjoyment from the job well done - the expert deposition where I was better prepared than the opposing expert, the hearing in which I had command of the facts and the law and was able to make a better reasoned presentation to the judge than my opponent. The quality of the effort - whether it is the written brief, the cross-examination, or the oral argument - sometimes matters more to me than being paid for achieving it. I'm the same way when I write a blog post (though I spend much less time on it than on my real work), and I can see in myself the compulsion to quality that my father had in his very different line of work (and that my daughter also seems to have inherited). But I also care about my reputation. When I appear in court, my primary goal is to do an excellent job for my client, but I also recognize other audiences - the judge, the other lawyers in the courtroom, even the opposing side - whom I want to perceive me as a lawyer with high standards, who can be counted on to make a strong presentation based on good reasoning, honesty and diligent preparation (all of which redounds to the benefit of the client I am representing in that case and other clients I will be representing in other matters). Although I recognize these qualities in myself, I do not pretend that they are unique or even unusual; most of the litigators I have had the privilege of working with, and many whom I have litigated against, have the same compulsion for excellence. The lawyer's goal of performing at a high level of quality is a very real and relatively common trait that tends to get lost in the legal industry's focus on more quantifiable concepts like profits per partner.
The question for all of us similarly motivated attorneys is how do we reconcile our passion for producing consistently excellent work with the client's business objectives of balancing value received with value spent? I once thought that in most large and complex cases, this would not be an issue - the value of winning would so obviously and significantly exceed the cost of doing so that clients would understand the reasonableness of unleashing the attorneys to do their best work. While this remains true in some bet the company, high stakes cases, it is the increasingly rare exception, and never the rule. Yes, clients tend to hire the lawyers who are the best and most experienced in the type of litigation that they face. And yes, clients expect and deserve the best work from those lawyers. The good lawyer's drive to excellence, and the client's business objectives, are always to a great extent aligned. But they are not perfectly aligned, and lawyers and clients must continuously search for ways to improve the alignment between their sometimes conflicting interests. (I have not included here the very important interest of lawyers in law firms for monetary gain, which clients often perceive as the principal driver in lawyers' efforts. While for many attorneys and law firms profits can, unfortunately, be more important than the drive for excellence, this article is meant to address a different issue, one that may be more real than recognized.)
There is no simple solution to this problem, and I do not claim to have solved it, but a few thoughts come to mind as I continue to wrestle with it. First, the problem can only be addressed by altering the traditional way that clients pay for legal services. As long as lawyers bill by the hour, there will be tension in finding the optimal level of work to satisfy the client's need for value while also allowing lawyers to do their jobs well. Alternative billing and thoughtful project management will be key. Second, lawyers can't find this balance themselves. We need to rely on trained professionals to assist us in pricing and managing projects, and who can free us from the administrative tasks that detract from our ability to do the work the clients have hired us to do. Third, short-term profits must take a back seat to long-term investments of time and resources in our law practices meant to enhance quality and affordability. And finally, lawyers need to be thinking and talking about these issues, and not hiding their heads in the sand, hoping the problem will go away and wondering why their business is dropping off. As one author might say, the cheese has moved (or, perhaps more accurately, is moving), and we must now move to find it.
This post is right on. I'm not an attorney but I do work in the world of environmental consulting, which operates in a similar fashion, i.e. billing by the hour. And there is never, ever sufficent budget to 'unleash us to do our best work,' as you put it.
ReplyDeleteIt is a constant battle of getting enough information to make the decisions you need to make and achieve the client's objectives, while still trying to garner some profit, and meet the schedule (which carries much more weight than it should!). And in that balance, things get pushed of the scale on one side or the other, notably quality. Get the data quickly, look it over quickly, write the report quickly (send out the invoice quickly!) and move on the next proposal.
Those satisfying projects where you feel like you are able to use your skills and experience the way they are meant to be used, are few and far between. Almost non-existent, actually.