Brian Baxter of American Lawyer has a post on lawjobs.com called The Fine Art Of Overbilling. It begins with this:
A tongue-in-cheek look at how to pad your bill, unless of course you don’t mind getting arrested or disbarred
Except, as I read it, it wasn’t tongue-in-cheek. Let’s look at the eight overbilling schemes and decide for ourselves whether they are tongue-in-cheek or hit a little close to home for some BigLaw lawyers:
1. Tell clients they’re more exposed than they actually are. That way they’ll be willing to spend more on their defense. Any potential settlement will also likely look like a win from a client’s perspective and that means more in fees!
2. Embrace document review, the mother lode of law firm billables. Hire temp or staff attorneys and bill the client at normal associate rates.
3. Raise your hand and "volunteer." Philadelphia Lawyer writes that the lawyer who crafts the initial version of any document for all parties "gets the lion’s share of billable time out of the project." If a client asks why you’re always willing to spend all day on some mundane filing, just say you want to control the process so they’re protected.
4. Don’t be afraid to double dip. Travel time is billable time, often for two more clients at the same time.
5. Be a jackass. Angering opposing counsel is a proven, easy way to ensure a protracted legal battle. Always communicate in writing, which takes more time, instead of simply using the phone.
6. Cut-and-paste, but act original. Almost every brief has been written before. Except the one you’re about to copy.
7. Let clients play lawyer if they want, even if they’re spouting nonsensical arguments that would never hold up in court. Just close your eyes and listen to the clock tick.
8. Big words = big bills. Promissory estoppel? Statutory preclusion? Sounds important, right? Sometimes it is. Other times … not so much. But most clients don’t speak legalese. If they call and demand an explanation, talk them through it. It’s all billable time, baby.
Here’s my vote on whether this happens, and at what level.
1. Routine, especially by younger partners. No one wants to work on low-risk matters.
3. Happens all the time. Senior Associates, younger partners.
4. In the past, but probably not as much anymore.
5. Incredibly, yes. I think the definition of what is relevant in discovery used by BigLaw is different than that used by the rest of the profession. They always want more. Whatever they get never seems to find its way to court. But then, neither do most BigLaw lawyers.
6. Let’s just say that few firms place a real premium on knowledge management. After all, the law that’s existed between the time of Marbury v. Madison and last year could have changed, and then there’s the need to have the most recent cases for the string cite that’s a page and half long. On an uncontested legal issue.
7. I’ll leave this one the clients to judge.
8. Varies, but probably not a big deal. Most clients are smarter than their outside lawyers anyway.
So there you have it. My scorecard says the Fine Art of Billing (and bilking the client) is alive and well.
What to do about it? Billing is about incentives. If a client buys hours, that is what they’ll get. And these really smart lawyers can create ways to create hours like nobody else. You want results? Pay for them. Put that creativity to work on ways to get better results faster.