More than just about anything. Done properly, it adds another hour to the work day just accounting for each 6 minute increment. It absolutely creates incentives to spend a lot of time on "document review" and in depositions rather than actually contacting opposing parties seeking settlement or resolution.

And large clients have their own systems and requirements, requiring different codes, etc. Billing an hour of time is like getting your insurance company to pay for an X-ray.

And then you have to review the junior attorney's time, to make sure it is reasonable and billable, and then after the client's accounting department kicks it all back, you have to review it again.

There has to be a better way.

I manage a small IT consultancy and just about all our work is now fixed fee. Everything is turned into a project with specific deliverables and a relatively firm delivery schedule agreed before work begins. Most of the discomfort occurs up front when everything gets negotiated.

I'm not sure if or how that approach would fly at a law firm. I suppose some work is too vague to accurately estimate in advance and fixed fees create incentives to over-book billable resources (which seems to be an existing issue.)

volume work. You can work up the average cost of a case, and if you have enough of them, it averages out fine. I worked at a firm that had that arrangement with an insurance company. The big, complicated cases averaged out with the smaller two letters and it was over case.

But the attorneys still had to bill the hours, because that is how the firm judged productivity, so even though the 300 hours worked on a case was not billed to the client, it was part of the compensation for the attorney.

Where it does not work out so well is when you have an individual client with one or a few cases. There are too many variables of fact and opposing counsel to be able to give a flat fee: the client would pay either too much or too little for what he got.

I don't buy it. Sure Cost Plus (which is essentially what hourly billing is about) is much lower risk to the Attys, but there are plenty of professions that have similar complexity in their processes that have to bid "Fixed Fee" or similar bidding processes.

"Fast-track" construction aka Design/Build has the same issue, and yet many such projects are "Not To Exceed" - and yes, invariably there is a professional project manager assigned who's sole job is to track the status and billing of the process.

Software development is a similarly complex process - arguably more so since in many cases it is something that hasn't been done before (more similar to a SCOTUS case)

Tech Consulting is mind-boggling in its complexity and its potential for undocumented "Gotchas". Yet that too can be "Fixed Fee" and "not to exceed" built. And when it does go "Cost-Plus" invariably there are penalties built in for failing to deliver on time (hmm there's an interesting contract approach with Atty's - do hourly billing but with penalties if the case isn't settled by date X).

complex, but large, so various parts can offset within the major complex process. Most legal cases are not that way. To bid on a single case that way, like say a divorce, would be extremely difficult. Some, with two parties that are working toegether to be fair, can be $2,000 and it is over. Others will be much more expensive, and it is hard to gauge which they will be. The client is his own variable, running through various emotions through out the case, sometimes wanting to be cut throat, at other times simply wanting it over. And it depends on the assets and intentions of the opposing counsel: if he wants to hire 5 expert attorneys all of whom need to be deposed, it will cost much more than if he only hires one.

That is why the legal cases can be lumped together in a batch and get a fixed price, but individual cases would not.

Plus, the incentive for an attorney to continue working on your single case when he is no longer making money, and there is no reasonable expectation that you will have many more cases to come, is problematic. When the risk is whether you get to see your kids more than once every two weeks, you may want to keep the incentive there.

Any case can be settled quickly, you just have to pony up the cash. And that is always the clients call, when to pony up the cash. If the client doesn't want to, the case is going to take longer.

A plaintiffs' lawyer I know likes to say that if a case can be solved by money, there is no problem. Easy for him to say since he takes one third of the whatever. As you point out, cases can be concluded early (you are talking civil cases) by paying money. However, how much is too much rears its ugly head. When that occurs, the issue becomes one of what is cost effective unless, of course, principle is at issue.

Old joke: client (pounding on desk), "I demand justice!"; lawyer, smiling, "how much justice can you afford?"

Reality: litigation is difficult and stressful for all concerned. For clients to complain about lawyers being paid for their labors is just human nature, I suppose. Nevertheless, if they want good representation, hourly or fixed fee, it's gonna cost 'em.

Anecdote: General counsel for major corporation asks me to make a fixed fee bid for the spectrum of its products liability litigation. I do. It's cheaper than what they are paying present counsel. He asks me for my method of making my bid. Foolishly, I tell him how I did it, including estimates of the time required to handle it. He says I'm making too much per hour. Wanna do away with it? Sure you do. Fuck you!

JackD's joke below about "how much justice can you afford" applies to your divorce example. I would suggest that a divorce is no more complicated than building a software project on hardware that is still being designed. Your client variable is the software part and the other party is the hardware.

In theory you have a specification for what the hardware will do, but those specs are never fully complete as they are only models. The industry statistic is that if it is a project that has been done before, then your initial project projections are accurate to +/- 100% - yeah 100%, and if the project requires any significant innovation it is +/- anywhere between 200% and 500%. Yet the software industry goes gangbusters.

Applying software industry project management and costing to divorce would essentially involve an initial fixed price consultation. This would be used to scope out the issues involved and to offer the client a fixed-price bid.

The fixed-price bid would include a list of what is included and what are "additional services". Once the client signs on, they can add the additional services, but only for additional pricing. That limits your risk exposure.

Similarly in building a house (an architected house like Falling Water ) you go to an archited and pay a fixed fee to develop a "program". The program INCLUDES a "not to exceed" price as well as a list of features to be included and features not included. And any changes then need to be made in writing and cost extra (this last bit is what put my brother's contracting business into the can - he had a project where he took the architect's word on the change-orders and ended up eating the cost of the changes).

I don't see why legal counsel is any different than any other expert counsel - be it IT, Architecture or Construction management.

quote, but I don't think it would be meaningful, in complex litigation anyway (for products like contracts or advice it works fine). The necessary exemptions and caveats would leave the end price with no relation to the estimate. In general, a retainer is the estimate: The attorney is looking to have enough resources to fully prosecute the case before he gets involved, but it is not guaranteed, and if the price is less, the client gets back the residual, and if it is more the client pays more.

The process is adverse: the party with deeper pockets or more spite may just purposefully drag it out. I can give a quote for what it costs for a deposition, and estimate the number of depositions, but I don't control the number. I can tell you what it will cost to write a brief, and respond to one, but I can't tell you how many the opposing counsel will write. I can estimate what is likely, but the estimate would be from 0 to many. Generally, the other examples you cite are not truly adverse, they are solving a problem. Can you imagine trying to give either party in the Brittney Spears divorce a meaningful estimate? When the client or adverse party won't even show for multiple scheduled depositions, but you are still investing the time to prepare and be there, waiting for nothing?

I could probably give a "high-low bid" with a guaranteed minimum and a guaranteed maximum, with the client and the attorney both taking a risk, but that probably violates the RPE, since my incentive would be to reach settlement as quick as possible so the least amount of work results in the guaranteed minimum.

And law is fluid: the opposing counsel may drop his suit in my jurisdiction and refile somewhere else: there is no resolution to the client, it just moved to a place I can't practice.

There is cookie cutter law that does flat rate stuff: DUIs, for example, can often be defended for a fixed price (how well is arguable). Divorce can be flat rated, particularly when there are no kids and little estate to divide. But the complexity and uncertainty of many cases don't lend themselves to that unless there is a bundling that allows for the expensive case to be offset by the simple ones.

Really, most cases aren't complex. Attorneys just like to say they are to justify their existence. The most complex case I ever worked on involved the civil component of an international money laundering scheme. I layed out my case, and opposing counsel tryed to stymie me by hiding under the shield of Hong Kong's very Swiss-like banking laws. I didn't care. I wrote a thorough discovery motion, laid out my case for what I needed to prove my case, a very distiguished Fed Ct. judge saw my point, wrote a scathing opinion (though good for me), and awarded sanctions of $100k per day against my adversary, and low and behold the bank records and other information I needed miraculously appeared, and the case soon settled.

More lawyers need to do their homework up front - before anything is filed. Map out a strategy. A thorough one. By doing this, it benefits the client (they KNOW what they're getting) and benefits the attorney (YES, you can bill for this). You strategized, then implement, and low and behold, often it works, and works very well.

This learn as you go thing serves no one but equity partners' wallets.

As I said, if a lawyer does his homework, no case is that complex. And yes, I've handled some what would be deemed to be "complex cases" - Catholic Church Sex Cases (civil component), re-writing FLSA law, multi-plaintiff 1981 cases, etc.

hard to understand, but as multi-party and multi issue cases that are difficult to determine a likely cost for. Until you get into discovery and realize that the primary malefactor has no assets, you may think your client is a small player, but it turns out he will be left holding the bag from joint and several. What started out as two parties in a dispute morphs into 10 because subcontractors are brought in third party.

I agree that I can warn my client that those things are possible, and when wargaming the case point out likely events that might trigger it, but I don't see how I can either expect him to pay for it if it doesn't happen, or eat it myself if it does.

I can also tell my client that for the most part third party depositions are a waste of money and time, but he has to make the call and take the risk that this time, something important is not left unchallenged.

I disagree with some of your other assertions, though. I have had a lot of cases settled or dismissed at deposition: the plaintiff simply shoots himself in the foot, or admits that my client was not responsible. Admissions are generally a waste of time, but depositions and discovery do end cases.

As I pointed out before, the multi-party aspect of litigation is not a lot different than software projects that are built on hardware still being designed, buildings being architected and built using Design/Build or any number of such complex projects.

You gave the example of the Spears divorce. The issue in the Spears divorce I would suggest is 3-fold

1. The parties have such deep pockets that any scoped contract you sign isn't going to be effective since upon reaching a boundary they are likely to say "OK I don't care what it costs, just do it"
2. The likelihood the parties are going to engage with their attys honestly is low. This is akin to working on a project where the building contractor or the software developers lie to the managers - and yes this causes trainwrecks like the ones we saw in Soviet space programs
3. The relatively low level of sanctions that courts impose on opposing counsel that engage in frivolous paper and obfuscation.

So you are right that a case like the Spears divorce will not be easily scopable - because essentially you are dealing with 2 spoiled children over which you have no effective ability to set limits.

But I would suggest that those are the exceptional cases rather than the rule. Very very few divorces have assets in the $hundreds of Millions

are correct, and the billable hour goes away. It made me dread the end of the month.

I think it is unlikely though, as others above have pointed out. Billable hours were pushed onto firms initially: clients felt cheated when the attorney managed to get an acceptable settlement early, or when the costs were higher than they felt acceptable, and wanted an accounting. I have had some clients that had 150 different codes that had to be added to each segment of the bill (ie, a different code for deposition prep for client vs expert vs plaintiff vs witness, and then new codes for the deposition itself along the same lines, and on and on). Just learning the system took hours, and each big client had a different one. It is an absolute drain on time.

And that too is a nightmare