Teaching Billing: Metrics of Value in Law Firms and Law Schools

Abstract

In this essay, we explore some of the problems that billing poses for lawyers in practice and in the academy. As our title "teaching billing" suggests, we believe that, although billing is a central practice of lawyers, it receives little sustained attention from either law firms or law schools. Deborah Rhode's important book In the Interests of Justice: Reforming the Legal Profession provides the occasion for these reflections, as she maps some of the conventions of billing, including practices that many would regard as dubious. The obvious answer is to call for "honest billing," but deciding what constitutes honest billing proves more difficult than one might assume, as does the question of whether incentives can be shaped to facilitate honest billing at either the individual or institutional level. Below, we map some of the problems embedded in a call for "truth in billing" and explore some of the conceptual and practical issues raised by the equation of time with value. While the literature on billing tends to focus on the institutional problems and the responses at law firms, we argue that the roles played by courts and law schools in shaping norms of acceptable billing also need to be considered. Judges are interesting participants in this debate. A good deal of law addresses the question of fees, as judges sit in judgment of lawyers' bills when asked to award fees either under statutory fee-shifting provisions or when a common fund is created. On one hand, as some judges campaign for higher salaries, they use law firm partner compensation as exemplary of how much money they are missing. Moreover, some judges resign—attracted by the fees available in the private practice of law or of judging. Yet judges are also public servants who in fact work at salaries less than many of their contemporaries and whose own life choices reflect valuation in terms other than dollars.