Scott Turow's Rallying Cry: The Billable Hour Must Die

There has been a lot of discussion in the blawgosphere about Scott Turow’s essay, “The Billable Hour Must Die,” in the August 2007 issue of the ABA Journal. Although Turow starts his essay by recounting how he admonished his daughter not to become a litigator, he concedes his own fondness for litigation, calling the courtroom the place "where the law [is] made, where the fundamental struggle to fit the law to facts takes place."

So why the warning to his daughter? Turow doesn't believe any litigator starting out today could have it as good as he did. "The ratio of pain to pride has grown too high," he says, and "the contemporary environment has become much less congenial to aspects of the lawyering craft that deeply pleased me." Indeed, Turow identifies litigation as the area of law practice most bedeviled by the billable hour and other negatives of modern day legal practice. He bemoans the fact that “for too many litigators, our life increasingly is a highly paid serfdom—a cage of relentless hours, ruthless opponents, constant deadlines and merciless inefficiencies.”

Turow identifies several sources for the rapidly diminishing appeal of litigation as a career (which could just as easily explain why lawyers in other practice areas are also unhappy):

• the increasingly fierce competition between law firms for new business (which Turow traces to the Supreme Court's decision in Bates v. Arizona sanctioning lawyer advertising);
• the media's glamorous portrayal of rainmakers (which results in an increased emphasis on making more and more money, which requires longer and longer hours);
• the sharp rise in annual quotas for billable hours from 1,800 hours/year when Turow entered private practice to targets as high as 2,200 billable hours per year (Turow wonders how a young lawyer working 2,200 hours a year can possibly find the time to pursue professional experiences that nourish a lawyer’s soul);
• the fact that vir­tually all firms today make fewer partners and it takes longer for a lawyer to become a partner

Ultimately, Turow's biggest beef is with the billable hour, which he argues presents an insoluble ethical dilemma insofar as it creates a conflict of interest between the lawyer and the client.  How so? Because it tempts lawyers to "run the meter” even if doing so is not in the interest of the client. While Turow doubts that greed is the principal motivation for the overwhelming majority of lawyers, he questions whether lawyers aren't subtly influenced by the prospect of increased profit to perform certain marginal tasks that may have been unnecessary from the client's standpoint. In short, the billable hour, as a system, offers scant rewards for discipline. Instead, it rewards slow problem-solving, duplication of effort, and compulsiveness.

While the ethical dilemmas presented by the billable hour certainly support a search for alternatives, an equally compelling reason to kill the billable hour is the negative impact it has on the quality of life for lawyers.

Unfortunately, the billable hour is an easy measure of attorney productivity.  If a law firm requires its attorneys to bill 2,200 hours per year, it could theoretically increase its productivity by more than two percent just by raising the minimum requirement by 50 hours per year.  That's only one more hour per week; the firms lawyers shouldn't even notice the increase in their weekly routine.  No problem, right?  Perhaps not, if you ignore lawyers' quality of life.

If we want to improve lawyers' quality of life, we will have to challenge some assumptions.  It won't be easy, but we must begin somewhere.  Heeding Turow's call to retire the billable hour is a great place to start.

By Steve Imparl, guest blogger