Tick Tock … You’re on the Clock

A clock with a 24-hour dial.

Last Word: Tick tock

Lexpert, October 2008

by Marzena Czarnecka

I once got to watch a tax lawyer work on his third best idea ever.

As I poked my head into his office, he was sitting at his desk staring at his e-mail in-box. He pumped his hands over his keyboard for a few minutes, looked up at me. “Hey, sit down. I just need a few minutes.” I sat down unobtrusively. His fingers tapped out a tattoo on the surface of his desk. He reached for a remote control and clicked on his television, switched quickly from CNN to the Cartoon Network. Squinted furiously at a technicolour bunny. Stuck his tongue out at the computer screen. Leaped up and walked around the desk three times, then leaned against his window and banged his forehead against the pane of the glass a couple of times. Weird shoulder shrug. Spun in a circle. Sat back down in his chair. Glowered in my general direction without seeing me. Stood up slowly and, in slow motion, crossed over to his bookshelf. Grabbed something giant and mangled that may have been the Tax Code—or a tattered collection of old comic books. Or an old Yellow Pages. Opened it apparently at random, flipped a few pages, grunted, put it down in the middle of the floor, and then stood perfectly motionless for about five minutes staring at the designs in his carpet. Closed his eyes, opened them. Did a weird thing with this teeth and tongue, then scratched his head. Bounded over to his desk, grabbed a notepad, scribbled a few hieroglyphics on it while standing, dropped into his seat, scribbled a few more notes, crumpled them into a ball, uncrumpled it, stared at it, stared at his blank computer screen, stared out the window, typed three words on the computer, heaved a big sigh, leaned back in his chair, looked up at the ceiling with a giant beatific smile, and then sat bolt up.

“OK,” he said. “Want to get a coffee?” (Lighting up a cigarette may have been more appropriate, but was no longer allowed.)

Another time, I got to see a corporate lawyer think up a deal structure and strategy that would save her client’s bankrupt butt—at least for a few more months. She had just stabbed a Portobello mushroom with significantly more force and viciousness than the poor grilled vegetable deserved, then brought it up to her mouth, and, lips opened and teeth bared, froze. Her forehead crinkled. She stared at the mushroom with frightful intensity. And then relaxed, grinned, and chewed it slowly, satisfaction radiating from her entire being just as it would right after… well, you know. (I swear I saw her fingers searching for a cigarette, and she’s never smoked.)

So here’s what I want to know. How did these two events appear on the docket sheet on which lawyers track their billable hours? They didn’t, of course, appear as they occurred.

My corporate friend did not bill for the 60 second Eureka moment that occurred while she was eating a salad, nor for the preceding 30 minutes of lunching, ordering and eating, during which the client’s troubles and potential solutions to them were churning and marinating in the back of her mind—or for the hour in the gym before that during which the client was oppressively with her in every way except his physical presence as she tortured herself on a treadmill.

The tax god didn’t write “6 days of fruitlessly staring at the Cartoon Network and using the Tax Code as a punching bag, 2 days of pacing in my office like an idiot, 6 minutes of brilliant connections that made it all worth while.”

(Wouldn’t it be kind of cool if that’s how you could write up your bills?)

It’s never made sense to me why lawyers bill by the hour, why they’ve built an entire industry and organizational structure predicated on this ridiculous model—and why clients put up with. Nay, apparently demand it—or so some lawyers say. That clients want to see what they are paying for, so they want to see “10:15-10:21 Telephone call with ClientCo’s CLO re: paragraph 6(a)(iii)” and “2:36-4:41” Drafting of Appendix D for Agreement U re: Contract H” on the bill.

Does that even begin to describe what it is a good lawyer does, and how she does it? Of course not. Billing by the hour (or fraction of the hour) comes with the added irony that the better and faster you are, the less you bill for specific tasks—what used to take days takes hours, and then minutes. Law firms try to address this by hiking up lawyers’ rates as they age and get more experienced and more efficient. But it’s an imperfect solution, because sometimes, a lawyer with 20 years at the bar will still be a semi-competent dawdler while his “fresh out of the gate” junior associate is a god of insight, speed and creativity.

Project fees, contingency fees, results-based fees make so much more sense. Class-action lawyers know this, as do their clients. Everyone else? Slavishly tied to billing by the hour. Why? First, because it’s how they’ve always done it… and second, it masks inefficiencies and creates a fake level playing field. It allows the mediocre members of the team to look as good on paper as the stars.

I live next door to a poet, and yesterday, I inadvertently watched him compose a poem. He looked an awful lot like a tax lawyer getting his third best idea ever or a corporate lawyer finding a way to save her client’s butt (except he didn’t go searching for a forbidden cigarette—he celebrated with a glass of wine and a beautiful woman. No, it wasn’t me. Strictly a voyeur, yet again). Wouldn’t it be painfully hilarious if he had to account to a, say, Government of Canada arts funding agency, for his act of creation in fractional increments of the billable hour?

Marzena Czarnecka lives and writes in Calgary and doesn’t bill anyone by the hour, although she occasionally pretends to.

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