In Defense of Our Humanity

1.

Murray Gottheil and I have disagreed about the billable hour for nearly a year now. More accurately, we’ve disagreed about it for longer than that, but we learned of our disagreement about a year ago and have engaged in a friendly and intellectually curious conversation since then.

He’s one of my favorite people on LinkedIn.

Most of the Knights of the Billable Hour I joust with are knee-jerk reactionaries who instinctively protect the status quo. This is how we do it and I have a tiny imagination and no curiosity, so there can be no other way!

Murray, though…I get the sense sometimes that he wishes I could convince him, that he wants to believe in alternatives – he does recognize some of the pitfalls of the billable hour – but that he just can’t quite get over the hump. He just published a post, “In Defense of the Billable Hour ” that is, as is typical for him, really very good!

On Monday, Murray reached out to me and sent me his article, anticipating that I might have something to say about it. I'm nothing if not predictable. So you will not be shocked to hear that I don’t agree with him, but not because I disagree with his analysis, as such.

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2.

Much of what Murray says is true and accurate. His conclusions are sensible, given the conceptual framework he sets up. I’m going to take issue with his premises rather than his conclusions, and suggest that there’s a wider set of concerns that leads me to reject the billable hour.

Murray’s defense of the billable hour is primarily economic in nature and, while this may not be an entirely fair summary, effectively states that because any billing system is open to abuse, the problem isn’t the billing system but the ethics of the person doing the billing.

Which…fair enough. No argument here. In fact, I nodded along with his conclusion because he is absolutely right.

While I have many arguments I might make about the misalignment of value accorded to an hourly rate vis a vis work and/or outcomes provided to a customer (and will always insist that my time is not a unit of value to my customers), at heart my objection to the billable hour is ontological in nature.

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3.

We’ve known for a long time now that the billable hour has all kinds of negative health and life effects. Anybody who’s lived the billable hour lifestyle knows that when your value to the firm is directly correlated to the amount of time you spend doing things that the firm can bill a customer for, the firm is incentivized to keep you doing, as Alex Su so aptly coined it, shitwork . There’s little incentive for the firm to look at any member (except rainmakers) as people. I was once at a firm that described associates, with the lack of humor that only law firm equity partners possess, as “billable unit shifters.”

And what this does, ultimately, is poisons our relationship with ourselves. It becomes impossible not to internalize our worth as the time we spend doing something. This is why we can always rationalize missing dinner, or the spring concert, the soccer game, graduation, your daughter’s wedding, the birth of your child, how we find ourselves answering emails in church, texting clients or partners during sex, dictating a brief as you’re giving birth. (All of these things were post hoc justified to me by maniac attorneys who did these and less tame things.)

When I was still in the billable hour model, I would feel guilty for taking my dog for a walk, thinking, “Damn, that was expensive! That was a .4!”

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4.

It gets us stuck in the industrial notion that productivity is the paramount virtue. The most valuable of all things.

And of course, that is nonsense fed to us to program us to build other peoples’ dreams for them. In the novel I’m writing, I have a passage discussing the notion of what industrialization does to turn people into resources, and it feels apropos given what the billable hour does:

Somewhere on the invisible heights of Mt. Washington a priest took confession, barely able to murmur the demand for penance to the immigrant steel workers.??It was difficult to demand much of them, most of the time.??The petty little sins, the lapses of perfection, never seemed so insignificant in the seminary.??These people never signed in blood; they spilled their blood, pints at a time.??The ghosts of Carnegie and Frick might have been Satan and Mephistopheles, haunting the gravel and blood-stained asphalt at the Homestead works, lurking behind the corners of every McKeesport bar, ready to pounce on easy prey.??It takes a faraway God to turn blood into money.??Their blood.??No mere vampire, no boogeyman.??We are talking about some higher being, beyond day-to-day moral qualms, men to whom other lives are mere tools, a reconfigured transubstantiation.??Blood and guts, bottom-lines.??But these men, on their knees, they had only their small meannesses, their quick Irish tempers, their Italian insouciance.??No books will be written about them, about their greatness.??Instead, once a week they had to climb Mt. Washington and enter a house of God, had to confess to an overburdened priest and receive weekly blood transfusions through a tiny paper cup, one gulp at a time.

Rather than confessing our sins, attorneys open TimeSolv and confess our imperfect productivity, one tenth of an hour at a time.

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5.

I don’t want to have an economic argument about whether the billable hour is viable. It makes a bunch of people at the top of various pyramid schemes a boatload of money and has been relatively durable for fifty or sixty years now. I do think it’s bad business for a number of reasons and I don’t think Murray quite articulates what value-based pricing is in his furniture store example, but that gets into the weeds.

My objection to the billable hour is that it hurts people. Consistently, in predictable and known ways.

Is it personal for me? You’re damn right it is. I’m neurodiverse and my particular brain is time blind: my ADHD makes it nearly impossible for me to accurately keep time. I can’t tell you how much frustration, shame, and anxiety this created in my life.

I do really good work. But I have no fucking idea how long it took me to do it and, it turns out, my customers don’t care how long it took me as long as the work is done when asked for. Honestly, they’d prefer it if it took me 20 minutes rather than 20 hours and would be happy to pay me the same amount for the outcomes.

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6.

And that’s the crux of it: is what we’re measuring reflective of what we do as lawyers? Is time our unit of value? If so, we’re going to continue measuring our intrinsic value as such, we’re going to internalize that, and any time we spend not billing will become wasted opportunity.

Isn’t that sad? We are more valuable than mere units of time.

Aren’t we?