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

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Learning to Think Like a Chicken Sexer

The Situationist brings us a commencement-time gift of Law, Chicken Sexing, Torture Memo, and Situation Sense, a 2006 commencement speech by Yale Law Prof Dan Kahan who congratulates the gaggle of fresh-faced law grads by comparing the skills just acquired during their 3-year, $193,200 education to the dark art of chick-sexing:

What in the world does this have to do with law, you are asking yourself of a professor’s lecture, once again. Well, what I want to suggest is that what’s going on in the chick-sexing profession is the very same thing that goes on in the legal profession. The formal doctrines and rules that make up the law – unconscionability, proximate causation, character propensity, unreasonable restraints of trade – are just as fuzzy and indeterminate as the genetalia of dayold chicks. And yet just as the trained chick sexer can accurately distinguish female from male, so the trained lawyer can accurately distinguish good decision from bad, persuasive argument from weak. Ask the lawyer for an explanation, and in his case too you’ll get nothing but confabulation – “plain meaning,” “congressional intent,” “efficiency” – or what have you.

In addition, the lawyer attains her skill – to recognize what she can’t cogently explain – in much the same way that the chick sexer does: through exposure to a professional slideshow, this one conducted by law grandmasters, including law professors but also other socialized lawyers, who authoritatively certify what count as good and bad decisions, sound and unsound arguments, thereby inculcating in students and young practitioners the power of intuitive perception distinctive of the legal craft.

I’ve had a few Yale-grads as profs so far and this begins to explain why they can be so infernally nebulous. I wonder have the chicks developed a ‘situation sense’ as they squirm under the eye of the chicken sexer? Would the chick be content with the chicken sexer’s ability to “recognize what [he or she] can’t cogently explain” or would they desire something more? a cogent explanation perhaps…

I watched in awe and admiration as many of my friends graduated this spring. Many already have jobs and clerkships lined up (with, of course, that little matter of the bar to take care of first) but as many still will be out there hustling, hanging out a shingle or catching on with a smaller firm. There are far fewer Yalies in this boat I suspect, but it is the reality for the majority of the bar. These new lawyers will, for better or worse, hit the ground running and they expect law school (faintly perhaps) to have prepared them for that, apologies for pedagogical methods notwithstanding.

These new lawyers will go out and represent clients, real people with real problems, who need not only someone who can recognize the situation but is prepared to do something about it. Clearly Kahan has not put this out of his mind entirely when he describes the “ability to arouse the situation sense of other lawyers, including judges” – though it’s not clear to me where the distinctive pedagogy for this particular skill lies, however. I’m doubt most law schools know either.

There are practical ‘skills’ classes and advocacy programs – moot court and mock trial and assorted clinics at most law schools but these are clearly outside the peculiar pedagogy most schools see as their fundamental value proposition. It’s a convenient if not entirely realistic trope that this learning to think like a lawyer business is all we should really expect from law school. This problem is not unique to Yale, they can afford to do less about it. I feel like the quality of legal education I’ve received has been very, very good, but when I hear words like Kahan’s, the implicit value system it imparts, I wonder what it could be.

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.

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