Problem Defined. Finding Solution Not So Easy?
A friend of mine passed along this quote from Scott Turow (apparently from a recent ABA Journal article);
"One reason that dollars times hours continues to prevail is because its hard to devise a fair alternative. Columbus setting out from Spain, destined, in some minds, to sail off the end of the Earth, probably had a better idea what he was headed for that either a lawyer or a client at the inception of a piece of litigation."
Turow, a former federal prosecutor and now a partner at Sonnenschein, is the well-known author of such classics as One L, The Burden of Proof and Reversible Errors. He makes a good point--we spend a lot of time talking about the problem with the hourly rate system, but preciously little time talking about solutions other than abstractly. Part of the problem is context. It is hard to talk specifically about alternatives not tied in some fashion to the billable hour without a specific lawsuit to use as a point of reference. I think the dialog would benefit greatly from a focus on specific case studies.
For example, in talking about "value billing" as it relates to a single lawsuit, how does one determine the value to the client? I am guessing that most clients would begin by guessing the cost to litigate the issue using an hourly rate system and then look at how things stack up to that option. But I invite people like Ron Baker and others more schooled in this than I am to provide case studies so that we can enhance the dialog on solutions. Staying with the Columbus metaphor, perhaps we can then compare the solutions to how the crew must have felt when they landed on one of the Bahama islands.