The above definition is our benchmark, but it requires some explanation.
Effort and efficiency. The specific ingredients of a billable hour include, in definition (1), how much time is spent, as measured on a clock, to complete a task, but the variable of effort is part of determining whether the time was spent efficiently. Perfection is not the standard, but the time must be reasonable. If a lawyer bills 5 hours to find stock jury instructions on Westlaw, even if he actually spent that much time, he will be in trouble, for that task would take a properly trained attorney less than ten minutes.
Experience. Experienced lawyers tend to take less time to perform a task than novice attorneys. For that reason, law firms bill lower rates for less experienced practitioners. Consequently, it may be reasonable to allow for more time to be spent by a junior lawyer, but even then most firms will occasionally reduce billable entries made by younger lawyers in order to avoid alienating clients or breaching the ethical obligations mentioned below.
Results obtained. Definition (1) also requires consideration of the results of a lawyer’s work. Hourly billing agreements generally do not provide for adjustment of the fee on the basis of outcome of a case, or even parts of a case (such as motions practice, early settlement efforts and other objectives), though it is becoming more common for billing arrangements to provide for adjustments based upon such variables. Under definition (3), a lawyer who loses a case but who prepared it and tried it well while billing reasonably for all time spent is entitled to be paid the same as if he or she had won the case; though it is sometimes wise from a business standpoint to reduce a bill in the aftermath of an unsuccessful outcome, particularly if the client is a source of ongoing business.
Reasonableness and necessity of time spent. Definition (1) and (2) both take into consideration the necessity of the work for which time is billed. In a case involving wrongful discharge from employment, such as an age discrimination case, it would not ordinarily be appropriate to bill for a substantial amount of time reviewing the accounting documents used to prepare a company’s annual report. It could stretch a lawyer’s credibility to assert that such time should be spent in defending a claim of age discrimination because “no stone may be left un-turned,” or “the accounting records might show a financial basis by which the employee could have been discharged” when the actual basis of the decision was the employee’s drug use or substandard performance. Expending lavish amounts of time developing a claim or defense that is extremely unlikely to benefit the client’s position is not acceptable.
On the other hand, this principle has been frequently used by lackluster attorneys to justify failing to identify and skillfully execute all the useful tasks that make a case as strong as possible for the client.
Professional Judgment is key. One of the most essential attributes of a good lawyer is good judgment. On this point, see our discussion of Good Professional Judgment as set forth in the Firm Policy entitled “Terms of Employment.”
Failure to Enter Time Promptly
The Firm expects all billing employees to enter their time daily.
When an attorney falls behind on entering time, some of that attorney’s time is forgotten rather than logged, and the attorney fails to “capture” billable hours that have been earned.
It is a statistically proven reality that when an attorney chronically fails to follow this practice, the Firm does not receive the benefit of the bargain with respect to its obligation to pay a certain salary to that person.
There is only one reason for this kind of failure to occur regularly or chronically: the attorney lacks the discipline to succeed in an hourly practice. An attorney who lacks the ability to track time generally also lacks the ability to keep track of deadlines, promises made to clients, key strategic and factual details, and generally has a hard time achieving excellence in their career. We have observed a direct correlation between an attorney’s ability (or lack thereof) to track time in a disciplined manner and that attorney’s ability to fully and skillfully research issues of law, to read and evaluate large record repositories (while noting the useful items contained in such records), to understand and recall key rules of procedure and evidence, and to produce quality written products, such as sophisticated and persuasive briefs and letters.
No attorney is perfect at keeping track of time, and some days are taken up with long depositions, or other totally demanding activities, so that it is often necessary to enter that time on the following day. However, when an attorney falls more than a day or two behind on entering time, the Firm is confronted with a real problem.
The financial losses to the Firm that result from lassitude in daily billing are the attorney’s responsibility to avoid. When the attorney fails consistently to do so, the Firm does not receive the benefit of the bargain when it comes to that attorney’s paycheck.
The Firm reserves the right to withhold paychecks when an attorney’s time is not up to date, and to reduce pay or discharge an attorney when billable requirements are not met.
Failure to Meet Minimum Billing Requirements
The billing requirement stated above applies without regard to vacation or sick leave. Chronic failure to meet the Firm’s minimum billing requirements may result in discharge or reduction in pay, at the discretion of the Firm.