lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Scare you to death, Work you to death, Bore you to death

This maxim for the evolution of the law student’s confused meandering toward matriculation is so far all too true in my experience, by which I apologize for the relative lack of posting lately. Technology giveth where law review taketh away however – I’m composing this post on my Crackberry 8800 which I highly recommend.

Southern District of Texas Judge Sam Kent takes a Leave, Speculation Follows

As reported in Legal Trade, Houston’s Clear Thinkers, the Houston Chronicle and AbovetheLaw, U.S. District Judge Sam Kent will be temporarily absent. No reason for the absence has been given, leading many to conclude that it can’t be good, speculating that it results from some sort of complaint against Judge Kent or perhaps an illness.

AbovetheLaw takes the opportunity to point out Kent’s noted propensity to take poetic license in his opinions, to the amusement of all but the lawyer or party being tied to the whipping post therein. My favorite from Smith v. Colonial Penn. Ins. Co., 943 F. Supp. 782 (S.D. Tex. 1996):

“The Court, being somewhat familiar with the Northeast, notes that perceptions about travel are different in that part of the country than they are in Texas. A litigant in that part of the country could cross several states in a few hours and might be shocked at having to travel fifty miles to try a case, but in this vast state of Texas, such a travel distance would not be viewed with any surprise or consternation. FN1 Defendant should be assured that it is not embarking on a three-week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court’s predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. . . . Alas, this Court’s kingdom for a commercial airport! FN2 The Court is unpersuaded by this argument because it is not this Court’s concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time.”

FN1. “The sun is ‘rize, the sun is set, and we is still in Texas yet!”

FN2. Defendant will again be pleased to know that regular limousine service is available from Hobby Airport, even to the steps of this humble courthouse, which has got lights, indoor plummin’, ‘lectric doors, and all sorts of new stuff, almost like them big courthouses back East.

AbovetheLaw also includes the venerable Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668 (S.D. Tex. 2001) which is delightful for several other reasons, but continues to hold my fascination through the world’s single greatest use of a case parenthetical.

Plaintiff also neglects to provide any analysis whatsoever of why his claim versus Defendant Phillips is a maritime action. Instead, Plaintiff “cites” to a single case from the Fourth Circuit. Plaintiff’s citation, however, points to a nonexistent Volume “1886″ of the Federal Reporter Third Edition and neglects to provide a pinpoint citation for what, after being located, turned out to be a forty-page decision. Ultimately, to the Court’s dismay after reviewing the opinion, it stands simply for the bombshell proposition that torts committed on navigable waters (in this case an alleged defamation committed by the controversial G. Gordon Liddy aboard a cruise ship at sea) require the application of general maritime rather than state tort law. See Wells v. Liddy, 186 F.3d 505, 524 (4th Cir. 1999) (What the ..)?!

Affirmative Action in American Law Schools – Help or Hinderance

Following my post Not So Long Ago, Race in Law School, I stumbled across the work of Richard Sander who ignited an intense debate in 2004 with A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004) (.pdf). Sander, whose son is bi-racial and has spent the majority of his career working in the area of Fair Housing and public interest law, is an unlikely opponent to affirmative action in law school, but his conclusion is unambiguous.

What I find and describe in this Article is a system of racial preferences that, in one realm after another, produces more harms than benefits for its putative beneficiaries …. Perhaps most remarkably, a strong case can be made that in the legal education system as a whole, racial preferences end up producing fewer black lawyers each year than would be produced by a race-blind system. Affirmative action as currently practiced by the nation’s law schools does not, therefore, pass even the easiest test one can set. In systemic, objective terms, it hurts the group it is most designed to help.

Responding to Sander seems to have been something of an academic specialty unto itself. Among the direct responses are Beverly Moran’s The Case for Black Inferiority? What Must be True if Professor Sander is Right: A Response to A Systemic Analysis of Affirmative Action in American Law Schools, Johnson and Onwuachi-Willig’s Cry Me A River: The Limits of ‘A Systemic Analysis of Affirmative Action in American Law Schools’, Charles E. Daye’s A Personal Perspective – Ten Reasons to Reject ‘A Systemic Analysis of Affirmative Action in American Law, David B. Wilkins’, A Systematic Response to Systemic Disadvantage: A Response to Sander, and finally, Chambers, Clydesdale, Kidder and Lempert’s The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study, which occasioned this response from Sander, A Reply to the Critics, to which they responded with Affirmative Action in American Law Schools: A Critical Response to Richard Sander’s – A Reply to Critics.

Commission on Civil Rights Report

Via Amir Efrati’s recent Wall Street Journal article Is Affirmative Action at Law School Actually Hurting Minorities? I discovered that The United States Commission on Civil Rights has just released a Briefing Report entitled Affirmative Action in American Law Schools (.pdf). In it both Prof. Sander and Prof. Lempert contribute the results of their most recent research to the discussion, providing an empirical backdrop for a discussion on whether the ABA can mandate the level of commitment to affirmative action among the constituent schools.

The discussion deals at length with the “mismatch theory” proposed by Sander, in which law schools admitting minority students to programs for which they are not academically prepared actually harm them because the job market is more responsive to that particular student’s grades than that it is to the academic prestige of the institution from which they graduate. I’ll let their arguments on the data speak for themselves, but the broader criticism Sander makes is a good one. If affirmative action by schools consists solely of lower admissions standards, there is a potential for disservice. Law schools are by nature ‘sink or swim’ environments. Whether or not a school is truly interested in correcting the effects of past racial discrimination or meeting a quota might be found in the efforts it makes to promote competitiveness in their affirmative action admits post-admission.

More on the Billable Hour, Charting Your Own Course

I recent wrote about the billable hour here in The Death of the Billable Hour, Wishing Does Not Make it So. Susan Cartier Liebel left a comment with a link to her excellent post The Cockroach of the Legal Profession – The Billable Hour. The most surprising fact – one that many lawyers are not aware of I would guess – is that the history of the billable hour in the legal is a relatively short one.

Douglas McCollam in a 2005 article in American Lawyer, The Billable Hour: Are Its Days Numbered? traced the history of the billable hour to the then nascent theories of ‘scientific management’ and (ironically) a Legal Aid society.

In 1914 Reginald Heber Smith, a recent Harvard Law School graduate, took over the Boston Legal Aid Society and enlisted the Harvard Business School to help him devise a detailed system to track and manage the organization’s finances. One of his innovations was to have the lawyers begin keeping detailed records of their time on different cases.

Smith took his methods with him to his new firm, Hale and Dorr where he became managing partner. In a short book, Law Office Organization, Smith wrote that “The service the lawyer renders is his professional knowledge and skill, but the commodity he sells is time.” To both the practicing or prospective lawyer, having the accumulation of ones skill, knowledge and training referred to as a “commodity” should be chilling. A commodity (think oil, coal, sugar, etc.) is a product for which there is always demand, but demand without regard to ‘qualitative differentiation’ across a given market. Meaning, in Smith’s formulation, that an hour of one lawyer’s time is no different, or at least of no greater value, than any other lawyer’s. Commodities markets are generally characterized as ruthlessly efficient. No commodity dealer can charge a premium for his product because it’s indistinguishable from any other on the market. The only way commodity dealer can compete is on the basis of volume. If legal services are truly a commodity then the only way one can make more money is to put in more time. Sound familiar?

According to Ronda Muir, the billable hour remained somewhat anomalous in the legal profession until starting to gain traction in the 1950′s.

In 1975, the Supreme Court, outlawing both the capped 1800s practice and the base system from the 40s, held that set fees for legal services constituted price-fixing, and was a violation of the antitrust laws. In response, by the late 1970s, most lawyers charged for their services based purely on hourly billing.

Recognizing the widespread dissatisfaction in the profession caused by pressures of billable hour requirements, the ABA undertook a study of the practice, the results of which were published in the ABA Commission on Billable Hours Report (2001-2002) (.pdf). Ronda Muir did the math based on the ABA’s recommendations in , A Short History of the Billable Hour and the Consequences of Its Tyranny

This time, the ABA recommended billing expectations of 2300 hours annually, composed of 1900 hours billable to clients plus a total of 400 additional hours for: firm service (100 hours), pro bono (100 hours), client development (75 hours), training and professional development (75 hours) and professional service (50 hours). Those expectations translate into a total 9-10 client and other hours @ day, five days @ week, 48 weeks @ year. The standard guideline for billable hours is that it takes approximately 10-12 hours to bill 8 hours. In which case, to achieve the ABA expectations, lawyers would be expected to work 12-15 hours daily.

Billable hours are not foremost in the minds of most law students when slogging their way through law school. This account from the Stay of Execution Blog is probably typical -

I didn’t focus much when I was a law student on billable hours. I was on the BIGLAW track — I figured, I’m smart enough to play in the biggest ponds, I don’t want to hear the wimps and the naysayers whining about “quality of life.” I figured that was silly sour grapes stuff from people who couldn’t hack it. Then I got to BIGLAW and I saw how miserable this timing of every minute can make people. Including me.

Of course lawyers themselves aren’t the only ones affected. See the perspective of a child of a BigLaw partner at Blue Rabbit Hutch:

As much as I admire my dad for the example of hardwork and honesty and integrity that he set, I think I would’ve been just as happy with someone who was less stressed, overworked and underappreciated, or who was at least better able to keep the side effects of that pressure out of the home. My dad made a valiant effort to participate in our upbringing, being supportive of our activities, triumphs and failures. But work pulled him away all too often. It’s easier to understand now, but it was hard as a self-centered kid. And I think he was probably always considered a little too “soft” at his cutthroat firm anyway, because of the time he did take for his family. So really, he couldn’t win anywhere.

Of course quality of life for lawyers is not the only problem posed by the billable hour. The overriding incentive of the billable hour regime is to bill as many hours as you can get away with. When you have a fiduciary duty to your client and a minimum billable hour requirement from your firm, the conflict is inevitable.

So, law students, what to do?

First, make yourself aware of the reality of legal practice. You’ve made a tremendous investment in money and time to go to law school. Wouldn’t it be worth investing a little time to figure out what you’ve gotten yourself into? I’m stunned at how much some of my fellow students seem not to know about the practice of law and how little interest they show in learning more.

Second, know thyself. BigLaw practice isn’t for everybody, but somebody’s got to do it and a lot of those people love it. You might be one of those people. We’ve been on the law firm reception tour the last few weeks and many of the lawyers I’ve met clearly love what they do and regard the sacrifice as well worth it. Others run screaming from it the first year of practice. See this resignation letter from a former associate at Greenberg Traurig who apologizes for accepting the job in the first place.

Third, if you do find that it’s not the life for you, figure out your alternatives. There are alternatives.

(1) You might decide to hang out your own shingle. When you’re the boss you get to set the billable hour requirements at whatever number you see fit. You have to eat of course and there are bills to pay, but if control is what you’re after, being your own boss is a good way to get it.

(2) You might choose a practice area with this in mind. D. Todd Smith notes in Texas Appellate Law Blog: Is Appellate Law Suited to Alternative Fee Structures?, that “[c]ertain features of appellate practice make breaking away from the billable hour possible.” Nearly every appellate practitioner I’ve spoken to has mentioned quality of life and predictable (not always fewer) hours as a big reason they’re in that practice area.

(3) Know the culture of the firms you’re interviewing with ahead of time. Talk to the attorneys, ask them about their experience. All firms feel the pressure of billable hours, but different firms deal with it differently. Know who you’re getting into bed with. If you’re going to work those hours make sure it’s with people you’ll enjoy being around for a significant portion of your day.

Jury Duty

I had jury duty today. It was originally scheduled for February but I rescheduled to fit it in the pathetically short break between our summer and fall semesters. Yeah, yeah, I know, I’m a student so I guess I could claim an exemption, but I didn’t want to get out of it. Far from the typical reluctant juror claiming rampant racism or homophobia to get out of jury duty, I saw it as a rare chance to see things from the other side of the jury box. I thought I might even join the ranks of the blogging jurors sometimes featured in Anne Reed’s Deliberations. Alas, it was not to be.

I spent 4 hours sitting in the juror holding pen, waiting for my number to be called. When it finally was called it was only to tell me that my services would not be needed. Could I come back tomorrow I asked? “Um, no,” I was told by a fairly incredulous officer, “you’re free to go, you got a release.” Sigh. I don’t think there would have been any shortage of volunteers to trade places among the 50 or so people who went ahead of me. Oh well.

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