Timelessly - Building Professional Firms Without Timesheets

Timekeeping and fearmongering

Most lawyers agree that timesheets and billable hours are terrible ways to measure value, but they don't know how to do it any other way. But amazingly, even as 2012 approaches, there are still some who actually believe that timesheets are necessary.

Jerry Kowalski, a former big-firm lawyer who now runs a merger-and-acquisition consulting firm, has been beating this drum for quite some time. His latest post of gloom and doom, called "I Know You Hate Keeping Time Sheets, but Even in the New Era You Must Still Do So and Here’s Why," is filled with canards like this:

The simple point is not simply that keeping accurate, detailed and timely time records is not simply the gold standard, it remains the only standard.  Yes, virtually every lawyer abhors the notion of justifying his or her daily existence in twelve minute increments, and, yes, we all now know we sell valuable services not hours, time accurate, detailed and timely record keeping still remains with us.

Nonsense. Keeping "accurate, detailed and timely time records" isn't the only standard for measuring the value that the client places on your services. In fact, it doesn't measure client value at all. All it measures is a tiny portion of the time spent by lawyers solving their clients' problems. I say tiny because it only accounts for the hours spent applying the lawyers' knowledge; it completely ignores the years of study and experience that the lawyers accumulated to garner that knowledge.

For example, according to Kowalski's bio, he practiced law full-time from the late seventies until 1992. I'm sure that near the end of his career, his clients benefited much more from his 15 years of knowledge and experience than from a few hours of casework. But none of his knowledge and experience was reflected on his timesheets. (And don't tell me it was reflected in his billing rate. That's not how BigLaw rates work. They're based on geography, firm size, and years since graduation — not knowledge or experience or skill. Jerry's value to his clients was probably underrepresented.)

The notion that timesheets are the gold standard of value is also belied by the fact that all timekeeping firms frequently write down their lawyers' time. At the end of each month, the billing partner reviews the other lawyers' timesheets in the context of the total job performed for the client. If the result seems high — especially if a junior lawyer spent "too long" on a research issue, or if the outcome was unfavorable for the client — the billing partner writes down the total to some arbitrary amount that feels "fair." But how can this be? Jerry says that the timesheet is the only standard of value for a lawyer's work? If that was true, law firms should never write down hours.

Finally, there's the tired, fearmongering refrain that legal pricing (what Jerry calls "alternative fee arrangements" or "value billing") is somehow illegal. As if. I challenge anyone to find me binding legal authority that mandates hourly billing or prohibits pricing. Kowalski and other critics of pricing often point to the rare case where a court has ruled unfavorably on fixed fees. But in the cases where courts have disallowed or reduced fees, the lawyers acted with questionable ethics and tried to defend unreasonable fees. The New York case Jerry cites actually involved made-up time records.

As for the massive fee award in the Southern Copper case, that fee wasn't based on the attorneys' hours; it was based on the result. The lawyers won a $1.9 billion award. They sought a fee of 22.5%; the court granted them 15%, or $285 million. Doing the math and calling it $35,000 an hour is silly. The plaintiffs didn't hire the lawyers for their time; they hired them for the $1.9 billion.

Clutching the Prohibition Era (1919, to be exact) talisman of the timesheet shows the world that you don't have any idea what your clients are buying. Clients don't buy hours; they buy your knowledge. Try measuring that instead.

And sowing fear about the risks of a timeless pricing model is reminiscent of the opposition to horseless carriages at the turn of the last century — not long before the birth of the billable hour.

(Image from "Vintage hate for automobiles" at 22 Words.)

Update Jerry responds in the comments below, which I greatly appreciate.

Modest billing-rate increases? As if

If you see lawyers with their arms in slings, it's probably from too much patting themselves on their backs. According to a recent survey in the National Law Journal (subscription required), law firms raised their rates in 2011 by "only" 4.4 percent. The story now is that this is the third year of "modest" increases.

From the National Law Journal:

For the third year in a row, law firms showed restraint with hourly rate increases, inching up at a rate only slightly higher than inflation in many cases. The average firmwide billing rate, which combines partner and associate rates, increased by 4.4 percent during 2011, according to The National Law Journal's annual Billing survey. That followed on the heels of a 2.7 percent increase in 2010 and a 2.5 percent increase in 2009 — all of which paled in comparison to the go-go, pre­recession days when firms could charge between 6 and 8 percent more each year.

via www.law.com

But if you get out the trusty slide rule, you'll see that rates have gone up fully 10 percent since the start of 2009. That's 10 percent during a massive recession. How many clients out there feel like their legal services are worth 10 percent more than they were three years ago?

Many firms had record revenues this year, all the while paying lip service to clients' "being in the driver's seat now." Let's not get ahead of ourselves. Just because firms aren't raising rates by 8 percent doesn't mean that clients are now thrilled.

Learn about pricing in the App Store

Pricing is difficult, in any field. Pricing professional services is so difficult that most professionals don't even do it, choosing instead to bill their time. But this problem isn't just limited to professionals. Software designers and app developers face the same problem. Which makes sense, if you think about it, because software is just knowledge in digital form. How a developer prices its applications can make all the difference between success and failure.

One app developer, Japan's Information Architects, has some very sophisticated ideas about pricing, and unlike most developers, has been willing to share those thoughts. You've seen Information Architects' work if you've been to my consulting firm Prefix's site, which was designed using their excellent iA3 WordPress template.

Information Architects recently released a new app called iA Writer for the Mac. It's a beautifully designed writing application with a minimalist style. (I'm writing these words on it now.) IA apparently took some heat for charging $17.99 for an app that has far fewer features than Pages or Microsoft Word.

But instead of ignoring those comments, CEO Oliver Reichenstein wrote an expansive post on IA's site explaining the pricing process. All developers and anyone else who prices their knowledge should take the time to read it. Here's the money quote:

In the eyes of the customer the value of a product is not proportional to its production cost. A beef filet cooked for 15 hours by 30 cooks doesn’t necessarily taste better than a cheeseburger. The customer doesn’t care how long it took you to do something. What customers look at is the exclusiveness and direct benefit of your offer. Or as Neven put it:

Pay $20 if you think you’ll get $20 of use out of the app. That is the only meaningful criterion to use.

If your offer is exceptional, your price can and should be. If you offer an exceptional product at low price it will be perceived and treated as a low value product, no matter how amazing it is.

Read the whole piece here. And if you like to write on your Mac without distractions, buy iA Writer for the Mac here.

11 innings vs. 11 years

Longtime readers know that I'm a big Boston Red Sox fan. So whenever I can use the Sox to make a point here, I will. Whatever works.

The Red Sox were supposed to be the team to beat this season. Almost all the pundits predicted them to win the American League pennant this year, given their impressive offseason performance in rebuilding the bullpen and acquiring superstars Adrian Gonzalez and Carl Crawford.

But things didn't start out so well. The team stumbled out of the gate, beginning the campaign 0–6 and 2–11. No team that has started out so poorly has ever even made the playoffs.

But over the past month, the Sox have turned it around. They've won 11 of their last 13, including the last two where they scored 14 runs in each game. They're now in a virtual tie for first place in the AL East (with the hated Yankees).

The Boston Globe's excellent beat reporter Peter Abraham called attention to starter Alfredo Aceves, who replaced injured Daisuke Matsuzaka in the rotation. In his last two games (11 innings), he's only given up two earned runs:

To some, Aceves may seem like an overnight sensation given that this is first season in Boston.

But Aceves, 28, has been around. He first signed with the Blue Jays when he was 19 then spent five seasons in the Mexican League before being signed by the Yankees. After three seasons in New York, he landed in Boston.

“It’s a lot of work, it’s not only two starts. I’ve been working in baseball for 11 years,” he said. “It’s not only two starts. You can see it like that; I don’t see it like that.”

Aceves makes an excellent point. He's saying that it's a mistake to just look at his last two outings and value him on the basis of those 11 innings, instead of on the 11 years of work that got him to this point.

And this is exactly the mistake that lawyers and other professionals make when they bill their work by the hour. In doing so, they're asking their clients to value you only them for the work they just did, rather than for the years of experience and knowledge that enabled them to do that work. If you're only charging for the past few hours, you're leaving money on the table because you can't charge for the value of your accumulated knowledge — your true value.

Quantum leap: How you will practice law in 2019

Here's the video from my IgniteLaw 2011 presentation at last month's ABA TechShow in Chicago. Thanks again to everyone who voted for the proposal.

The event was fantastic, with a terrific lineup of boldfaced names from the blawgosphere. The rules were simple: 20 slides, 18 seconds a slide, and no way to control their relentless advance. It was terrifying and exhilarating. As someone who does a lot of public speaking, I found it far more difficult than preparing for a 90-minute speech. Most of the other speakers had the same reaction.

Here's the summary:

In 2019, your law practice will use cloud computing, a paperless office, and the iPad 10. But those won't be the biggest changes to how you practice law. Instead, the biggest difference will be in the way you value and price what you sell. And before you can make that change, you have to understand what it is you sell. Spoiler alert: It ain't "legal services," and it sure as hell ain't "hours" or "time." Instead, lawyers sell knowledge. How you value and price that knowledge will be the greatest change in your 2019 practice (before you hop in your flying car and head to court).

Here's the video. It's just six minutes, although it felt like 60 seconds at the time. Enjoy!

The other 11 talks can be found here on YouTube.

The future of law in six minutes flat

Want to know what the future of law will be like — what it will be like to practice in 2019? Here are two easy ways to find out:

1. Go to sleep, set your alarm for eight years, and wake up in 2019. Then go to your law firm and look around. If you’re a lawyer, make sure you make arrangements to have your bar membership paid each year while you’re out. (OK, maybe that’s not so easy.)

2. Go to the Ignite Law website and give 5 stars (please) for my proposed talk, “Quantum Leap: How You Will Practice Law in 2019.” Just click on the fifth (rightmost) star (and click carefully; they’re tiny. See the helpful picture below). Voting ends tomorrow (March 22) at 5. There are 24 other proposals from a rogue’s gallery of big legal thinkers, and only the top 12 will be selected. Your vote will make a difference.

Then come to the ABA TechShow in Chicago starting April 10. The Ignite Law program is Sunday night at 8:00 CDT. You can sign up for tickets here.

So what is Ignite Law? Well, it’s an evening of very short presentations with a challenging constraint: 20 slides, 18 seconds a slide (equaling six minutes exactly, or 0.1 to you lawyers who still use timesheets). The speaker has no control over the slides, which keep advancing like sands in the hourglass (or something) every 18 seconds. It forces the speakers to keep it brief and pithy, and to leave home all the boring bits. It’s inspired by Japan’s Pecha Kucha Nights, which allows a luxurious 20 seconds for each of the twenty slides.

No matter which proposals get chosen, it promises to be an amazing event. Hope to see you there. And thanks for the vote!

Alternative fees kill major law firm. Or not

One of the largest firms in the country, Howrey LLP, voted to dissolve itself yesterday. In an interview with The Wall Street Journal yesterday, the firm’s final CEO Bob Ruyak blamed Howrey’s demise on “alternative fees.” (You know how I feel about that ridiculous term.) He also blamed discovery vendors (those vicious law-firm assassins), impatient partners, and, of course, The Economy. Funnily enough, he failed to blame a creaky, outdated business model or, you know, himself for the collapse of the firm. But trust me when I tell you that the story going forward will be how those dastardly alternative fees killed Howrey dead.

As if.

I mean, give me a break. It’s not as if Howrey was on the cutting of edge of trying to get rid of the billable hour. In a nationwide survey by the National Law Journal showing larger firms’ use of so-called alternative billing, Howrey declined to participate. (See “The numbers behind the lip service: Part One.”) In an article on their own website, their Northern California managing partner Henry Bunsow whinged about how hard it was to do litigation without the billable hour, and doubting whether clients really wanted it:

Howrey bills about a third of its work with alternative fees and is trying to grow that number. But he said it is a somewhat difficult task because “in the highly important types of cases, [clients] probably don’t want a fixed fee arrangement.”



Bunsow’s observation is one echoed by many: Nonbillable-hour fee arrangements often cease to be effective in major litigation, especially in matters that go to trial.

(My emphasis.) Not exactly a revolutionary.

In a November 2010 article in The American Lawyer, “The Story Behind Howrey's Very Bad Year,” writer Julie Triedman explained the problems Howrey had in pricing its services:

Over the past couple of years, notes Ruyak, clients have insisted on more alternative billing agreements, success fees, and extended payment plans, making cash flow lumpier, financial reports more confusing, and projections less accurate. In 2008, some $35 million in contingency fees helped drive profits to record highs, but last year, notes Ruyak, the firm had negligible contingency revenue and was plagued by “poor pricing.” Last year’s dip “was a big swing,” Ruyak says. “I understand many partners’ psychological anxiety. But I can’t really do a whole lot about that.”

(Wow, way to channel your inner Shackleton.) Triedman also says that when Howrey was trying to tweak its old business model, “some experienced and independent advisers would have come in handy.”

In a May 2010 American Lawyer article, which discussed how fluctuations in Howrey’s contingency fees affected its bottom line, Ruyak conceded that they didn’t really know what they were doing:

Ruyak says that even with limits in place and years of experience with these types of billing arrangements, the firm is still in the process of “figuring out how to do them well.”

So we’re starting to see the real problem here. It’s not that “alternative fees” killed Howrey; it’s that Howrey didn’t know how to change their business model and price the knowledge that was their stock-in-trade. And you really can’t blame them. The billable-hour model was invented in 1919, and big firms like Howrey have known nothing else. As Triedman pointed out, some experienced advisers would have come in handy.

Let me put it to you another way: When I first played golf, I sucked at it. But I didn’t blame golf. And over the years, if I tried a different approach to my swing and it didn’t work well right away, I didn’t decide that the new approach was bad. Just that I hadn’t figured it out yet. (And never actually did.)

When it came to alternative fees, Howrey was a duffer.

Changing a hundred-year-old business model isn’t easy, but done right, it can work. And I’m here to help.

I take no pleasure in yet another BigLaw firm shutting down. A lot of excellent lawyers are now out of work. And changing the way you've always practiced is scary. But just because the change is scary and difficult doesn't mean you shouldn't do it.

If Howrey had learned how to price, it would be atop the Am Law 100 list today, instead of being its latest casualty.

What do you think? Do you think “alternative fees” killed Howrey? Or that video killed the radio star? Share your thoughts in the comments.

---

Ruyak’s finger-pointing interview is unfortunately behind Rupert Murdoch’s paywall, but the ever-awesome Ashby Jones has kindly pulled back the curtain to show some of the better bits on the WSJ Law Blog. (See “CEO Ruyak Partly Blames Contingency-Fees, Discovery Vendors, for Howrey’s Fall” and “What Else Happened to Howrey? Here’s More From CEO Ruyak.”) And see the excellent continuing Howrey coverage over at one of my many other jobs, Above the Law.

Efficiency, effectiveness, and baseball

Pitchers and catchers report tomorrow.

If there's anything that can get a New Englander through another brutal winter, it's the phrase "pitchers and catchers report." Even though the season doesn't start for another 48 days, the fact that baseball activities are beginning in Florida and Arizona tells us that we've almost made it.

While I'm here pondering baseball, the debate continues in legal circles (and other professional circles, too) about "alternative fees" versus hourly billing. And it's good to have the debate, since lawyers have quietly plodded along with this business model since it was invented in 1919. Debate clears the way for change. But with that said, many who claim to be advocating for change are actually riding off in the wrong direction. They may mean well, but they have overlooked the big-picture problems that are crippling the profession. You can spot them by some of their buzzwords.

• project management
• Six Sigma
• Lean Six Sigma
• Big-Boned Six Sigma (I may have made that up)
• fee caps
• hybrid fees
• risk collars
• blended rates
• timesheets (to see if their jobs are "profitable")
• realization rates

and my personal favorite:

• efficiency

Wait ... what? How can efficiency be a bad thing? Don't clients want their lawyers to be efficient?

Newsflash, people. Clients don't give a flying something through a rolling donut about whether their lawyers are efficient. (Unless they bill by the hour; then it's all about efficiency.) No: Clients want their lawyers to be effective. Am I quibbling about words here? Of course I am; I'm a lawyer. Words are my hammers and nails.

According to the New Oxford American Dictionary (the only US dictionary worth a damn), efficient means "achieving maximum productivity with minimum wasted effort or expense." Effective means "successful in producing a desired or intended result." Which do you think clients care more about?

Look a little deeper at NOAD's usage entry at effective, where it says that the words are not interchangeable:

Use effective when you want to describe something that produces a definite effect or result ….

When applied to people, efficient means capable or competent (: an efficient homemaker) and places less emphasis on the achievement of results and more on the skills involved.

What I am not saying is that lawyers and other professionals shouldn't try to work efficiently. Hell, if I could train a service monkey to type this for me instead of bashing it out with my two clumsy index fingers, my Blog-Writing Project-Management Efficiency Index would go up an entire Sigma. (Yeah, I have no idea what that sentence means either.) But that would have absolutely zero impact on whatever (questionable) value you the reader get from reading this post. The value is in the result, not the work. Not in how efficient I was, but how effective I was.

What does this have to do with baseball? Longtime readers know that I'm a big Red Sox fan. And they wouldn't be surprised to know that I'm very excited about the 2011 season. The Sox made a huge trade for Adrian Gonzalez, sending prospects to the San Diego Padres for the star first baseman with a swing built for Fenway. They also snagged the top free agent on the market, Carl Crawford. And they also rebuilt their bullpen, a major weakness last season. Because of all this spending, the Sox will sport one of the highest payrolls in baseball, and will be one of only a few teams subject to the league's payroll tax.

If I cared about efficiency, I'd be pretty upset about this profligate spending. But all I care about it is winning, and I know that the team has put itself in a strong position to do just that.

Last season, the most efficient team in baseball — in terms of payroll dollars per win — was the San Diego Padres. They led the league in efficiency, paying a mere $419,000 per win. (Compare that to the Yankees, who shelled out $2.17 million for each W.) The Padres finished in second place in the NL West, outside of the playoffs. Think their fans are happy with the team's efficiency title? Think again.

People who worship at the altar of efficiency, who prostrate themselves before the idols of project management and Six Sigma Yellow Belts, who speak volumes on efficiency and nothing on effectiveness — they're focusing on the wrong things. They're looking at the work, not the result. They're paying attention to the lawyers, not the clients.

Unlike baseball fans, they're not focused on the wins.

There are only 2 types of law-firm fees

If I read another article about "alternative fee arrangements" or hear of another two-day seminar explaining all the various and complicated AFAs out there, I'm going to try to swallow my tongue. (Disclaimer: This is of course hyperbole. I'm not going to do that. And don't you try it either, just to see if you can do it. You can't. End of disclaimer.)

Lawyers beholden to the Prohibition Era model of billing and the consultants who court them are desperately trying to show how complex and scary AFAs are. The clients and other lawyers who read these articles and go to these seminars walk away shaking their heads and surrender to sticking with the old billable-hour model. Maybe with a discounted rate, please.

But I'm here to tell you that it is not at all complicated. In fact, if you have seven seconds, I can tell you about all the different types of law-firm fees. Ready?

There are two:

1. Time-based pricing
2. Solution-based pricing

That is all.

No, really. It's no more complicated than that. Time-based pricing is what nearly every law firm does, where the price of the legal services depends on the time spent doing the work and the rate of the "timekeeper."

(In truth, I'm being generous here, because it's not really "pricing" at all. Pricing is when you tell the client what something will cost them before they buy it; time-based law firms don't do that at all.)

Under the time-based-pricing model, invented in 1919, every activity is worth the same amount on a minute-by-minute (or really, six-minute-by-six-minute) basis, regardless of how important the task is. With few exceptions, every client is charged the same per hour, regardless of their differing needs. The only measurement of value is the amount of sand that has dropped in the hourglass.

Solution-based pricing is when a law firm sets a price based on the value of the solution to the client. It's that simple. I'm not saying it's easy, because it's not. It takes a lot of thought and preparation and understanding and empathy and experience to figure out how much this particular client values this particular solution at this particular moment. But that's OK because we're professional knowledge workers, not pieceworkers in a pin factory.

Clients — simple question: Do you want the price of your legal work to be based on the time lawyers spent, or on the value you place on the solution? It's one or the other.

(See, I just spared you that two-day seminar on AFAs. You're welcome.)

What do you think? Can you come up with any other methods? Bet you can't. But give it a shot in the comments. (I particularly look forward to time-based lawyers protesting about how hourly billing is a kind of solution-based pricing. Good luck with that.)

Hourly billing is dead. Ish.

It just doesn't know it yet. Turns out, a lot of lawyers don't know it yet, either.

New Year's Day marked the second anniversary of The Client Revolution. During the past two years, we've written and read many, many words about the death of the billable hour. And yet, despite the countless posts and articles on blogs and in magazines and newspapers, despite the many seminars and conferences and panel discussions, despite all the talk of the end of hourly billing, it's not dead yet. Not quite.

So what's keeping it alive?

Fear.

Lawyers and law firms fear that if they stop keeping timesheets and stop tracking hours, they will make less money than they do billing hourly. And clients, especially in-house lawyers at larger companies, fear that without reviewing detailed time entries in stupefying legal invoices, they won't know if they're getting ripped off.

Despite this fear, both groups continue to express interest in so-called alternative billing. (See why I hate "alternative billing" — the term, not the concept.) Organizations are holding two-day seminars on all the different types of "alternative fee arrangements" (the faddish term of the moment). The problem is that people leave those seminars shaking their heads and muttering how complicated it all is. And then they go back to billing or being billed by the hour.

What The Client Revolution is all about is that pricing legal services is not at all complicated. It's simple. It can be difficult, I'll give you that. But it is simple. Here is the secret to pricing in a single sentence:

Figure out the value to your client of solving their problem, then set the price as close to that value as you can without going over.

Simple. But hard.

In 2011, the third year of the Client Revolution, I'm going try to make it less hard for lawyers and clients.

• • •

P.S. Over the past two years, we've had over 50,000 pageviews. My sincere thanks to all of you: readers, subscribers, commenters, and supporters. If you don't yet subscribe to The Client Revolution, please sign up now. I've set the price to, uh, free.

It's about the sex

My favorite novel of all time is Herman Wouk's World War II epic The Winds of War. (Actually, the follow-up novel, War and Remembrance, is the same story continued. The two books together are my favorite.) At one point in the story, young Madeline Henry is annoyed to find that her radio-host boss — whom Wouk describes as "oleaginous" — has ordered a prostitute to be sent up to his hotel room. (He hadn't expected Madeline to show up to talk about their radio show.) He has the prostitute wait in another room while Madeline describes her idea for a new program. She is unmollified:

Both hands jammed in her coat pockets, Madeline said, "It's not fair to keep a prostitute waiting. All she has to sell is time."

Now, I don't have any experience with prostitutes, but it's my understanding that their customers aren't buying time; they're buying something else. (Sex, if I'm being too oblique for you.) And the prostitutes charge by the job (at least I think they do), and not by the hour. It's not about the time; it's about the sex.

On a related note, Abraham Lincoln once wrote: “A lawyer's time and advice are his stock in trade.” (This is often misquoted, with "and advice" getting left out.) Smart guy, Lincoln was, but he was half-wrong here. The lawyer's advice (and knowledge) is his or her stock in trade; the lawyer's time is not.

Most lawyers misunderstand this, and actually believe that they are in the business of selling time. But they are not. Clients don't buy time; they buy knowledge. It is the knowledge that they derive value from.

Maybe the second-oldest profession can learn something from the oldest profession.

What do you think? Are your clients paying for time, or are they paying for your knowledge and attention? Sound off in the comments below.

(Disclosure: No one pays me to recommend anything, but if you click through here to buy a book, I may get a minuscule payment from Amazon. Woohoo.)

Two kinds of lawyers

There are only two kinds of lawyers in the world:

Lawyers who price, and lawyers who don't. Everything else is lip service, or window dressing, or sleight of hand.

Lawyers who price work very hard to try to figure out what their client's needs are and what the value is to the client of satisfying those needs. They then come up with a price that is less than or equal to that value, and they tell the client that price before performing the service. The client either accepts that price or does not, and if so, the lawyer does the work at that price. And the price for that service doesn't change. If the needs unforeseeably change, then a new price will be arrived at. But remember: we're talking prices, not estimates.

And that's it. It's that simple. (It may not be easy, but it's simple.)

If you don't do this, then you're the other kind of lawyer: the kind who doesn't price.

Obviously, lawyers who bill their time make up the bulk of this category. Telling a client what your rate is and then giving a vague estimate of the time you think you might spend is not pricing. Not by a long shot. Making adjustments to the bill at the end of the month to put the total amount more in line with the value delivered is not pricing. Tracking your time to try to determine any kind of concept of value is not pricing.

Capped hourly fees are not pricing. Blended rates are not pricing. (They're just a ripoff.) Hybrid fees are not pricing. AFAs ("alternative fee arrangements" — the in-vogue thing to call different alternative billing schemes) are not pricing.

Giving clients a choice between a price and hourly billing isn't pricing. It's a copout, and it tells the client that you don't believe in the value of your services. Tracking your time to see if your "losing money" on priced engagements is the same kind of copout.

Project management is not pricing. Six Sigma is not pricing. Neither is Lean Six Sigma. Or Portly Six Sigma. Or whatever. (And I don't care if you're a black belt, orange belt, or a braided-leather belt with a giant John Deere buckle. It ain't pricing.)

You can go to all the two-day seminars on AFAs you want, but mostly you'll be learning about Not Pricing. Your time would be better spent learning about your client and how they value the solutions to their problems and whether you can make a profit solving their problems for that amount.

That's pricing.

"Don't take this the wrong way …"

We just finished up a case for some clients: guys wrongly accused of taking trade secrets from their employer in a bid to set up a new competing business. We ended up with a terrific result, getting the lawsuit dismissed and allowing them to continue their careers with no money changing hands. We did it effectively for what turned out to be a very reasonable fixed price.

After it was over, the clients were very appreciative. They thanked us for our work and our results. In an email, one of them expressed more gratitude, and then added this:

Don't take this the wrong way, but I hope I never have to speak to you again professionally.

Huh. Now I know what he meant, and I know that he meant it half tongue-in-cheek. But just half. As good a job as we'd done for him and his colleagues, as much value and caring and support as we had given him, it was — overall — a negative experience for him.

And this wasn't the first time I'd had this expressed to me over my 16-year career. A long-time client would call after a months-long hiatus, and I'd go, "Hey, it's been a long time" and he'd go, "I know. It's been nice." Ouch. Now I know that my client isn't saying that he dislikes talking with me. It's just that he'd rather not have to talk to me.

And this bothers me.

Maybe it's the nature of the work we do: people usually aren't very happy when they need employment-law or business-litigation help.

And yet.

And yet I can't help wondering if there's something we can do — if there's something lawyers can do — to make clients want to deal with them. In the same way that they want to deal with other great businesses.

People love to buy the latest gadgets from Apple. People love to fly Southwest. People love to visit Disney parks, or buy shoes from Zappos.com, or buy groceries from Whole Foods. Is there something we can do to make people love dealing with their lawyers, or is our field fundamentally different from other businesses?

This is an important question, and one that I'm spending a lot of time thinking about. I'll let you know if I find the answer.

What do you think? Can a law firm be like Apple, or are lawyers doomed to being necessary evils? Share your thoughts in the comments below.

Fixing prices Down Under

The Client Revolution isn't just limited to the United States. Lawyers in Canada and the UK are also bridling at the Woodrow Wilson–era business model of timesheets and billable hours. In Australia, there's been a flurry of antitimesheet talk and activity. See Ron Baker's post "Timesheets on the defense Down Under" over at VeraSage Institute for a nice summary, highlighting colleague John Chisholm's great work in the area.

Australia's national legal newspaper, Lawyers Weekly, had a fine special report on the topic, "Once upon a billable hour," by the paper's editor, Angela Priestley.

I spoke with Angela last week. She was interviewing me in advance of my visit next month to Sydney, where I will be presenting at the Australian Law Practice Management Association's annual conference. Angela did a nice job framing the issues and summing up the message that I plan to bring to Oz next month. She paid particular attention to the problem of timesheets, and rightly so. She writes:

Shepherd believes that all areas of law can function without timesheets — even litigation, which he says takes up 75 per cent of his work — and he's adamant that if a firm moves to fixed-price billing it must also remove timesheets to ensure the removal of the billable hour is truly engrained, even if such a firm only uses timesheets for internal purposes.

"Many firms say, 'we'll try fixed prices, but we're going to keep timesheets.' That's a cop out, they are missing the point there," says Shepherd.

That point is that lawyers operate differently when not tied to billable hours. Shepherd believes that by removing timesheets, lawyers can truly concentrate on delivering the best outcome for clients and that in his firm, the moves has contributed to a direct increase in revenue.

"I really don't want my lawyers to be thinking about time," he says. "It's not just an invoicing method, it's a way of thinking about the work that we do. You don't practice the same way when you're not worried about hours. You do things differently, you make different choices."

It's an idea that's fast making its way around the world. Read the rest of Angela's piece here.

Thoughts? Have you heard of lawyers ditching timesheets in other parts of the world? Share in the comments below.

Cooling my heels: $600?

I spent part of Thursday morning at the Suffolk County Courthouse in Boston. Like all courthouses, it's a place where important work is done, but where a staggering amount of time is spent waiting. And that's what I did, for the most part: waited.

You see, I had to go to the courthouse to file an emergency motion to compel, something I rarely do. My task was mainly to get my papers in the hands of the courtroom clerk and get a hearing scheduled on the docket. I didn't want to send someone else — a messenger, a paralegal, even another lawyer — because there was a minute chance that the judge would offer to hear from me on the spot. In the end, she didn't, and the clerk scheduled my hearing for Monday. I accomplished what I needed to do, so it wasn't at all a waste of time.

But if I had been like 99.99% of other American litigators representing companies, I would have billed my client for that hour spent (mostly) waiting. And my client would be lucky that it hadn't been more time, since my office is less than a hundred yards from the courthouse. If I billed hourly, my client would have spent — based on my firm's size, my location, and my personal level of experience — at least $600. That's six hundred dollars for the two minutes it took to have a piece of paper filed in court, plus 58 minutes of leaning against a wall in the corridor.

Someone explain to me how my time — anyone's time — would have been worth $600 to stand around and do nothing for 58 minutes. And don't tell me about the opportunity cost — that my time cooling my heels for one client kept me from doing other work. No client cares about that.

Yes, I delivered value to my client by going to the courthouse, but not $600 worth. Fortunately, my client is paying a fixed price, and doesn't need to worry about how I spend my time.

What do you think? Should clients pay for waiting? How does that benefit them? Where is the value in that? Share your thoughts in the comments below.

Why Verizon FiOS is smarter than I

Or is it "smarter than me?" (Verizon FiOS would know, because it's so smart.) (Actually, according to Grammar Girl, it's both, but "I" is probably better.)

Anywho, here's why Verizon FiOS is so smart. It's currently locked in a grudge match with archrival Comcast over whose TV-and-internet package is better. Most of the commercials by both companies are nasty and forgettable. But the following commercial, which has been in heavy rotation on NESN (the network of the Red Sox), is inspired. Go ahead, it's only 32 seconds. I'll just stand here awkwardly:

... and we're back. Pretty good, huh? What I really like about the ad is that, unlike all the other commercials, it doesn't make subjective claims about being "better." Nor does it get into technobabble about how many more "Mbps" it can deliver. Instead, it focuses on a single, indisputable idea:

That cable was invented in 1948.

Implicit in that fact is that cable is somehow inferior to the modern technology of Verizon's "100 percent fiber optics." And that's a powerful message. (Full disclosure: I'm watching the Red Sox game and transmitting this post on my Verizon FiOS network, on which I'm getting a bitchin' 17 Mbps in download speed. But fear not, FTC: they ain't paying me to write this; I'm paying them.)

So how does that make Verizon smarter than I? Because I should have made this commercial years ago. But I would have changed some of the words. Like:

So why are you still using an antique law firm with an hourly billing model created in 1919 to for your 2010 business?

Then maybe something about hooking your business up to 100% fixed-price lawyering. I gotta work on the tagline.

Big shout out to VeraSage's Ron Baker, whose research uncovered the 1919 origin of law-firm timesheets. See my recent exchange with him on this example of antiquity.

This isn't the first post I've mined from a sporting-event commercial. See "What lawyers can learn from an Office Depot commercial" from this year's Super Bowl.

What do you think? Is this an effective message? Do I watch too much TV? Is it really "than I"? Sound off in the comments below.

How to increase revenue 43%

Short answer: offer an additional pricing choice. Even a stupid one.

Longer answer: Check out this video. It's almost perfect. It shows how adding a single pricing choice can add 43% to total sales revenue. It's presented by Professor Dan Ariely, a delightful MIT economist. And it's only 114 seconds long.

Why don't you take the 114 seconds to watch it? I'll wait ...

Here's the math on the different options:

With two choices:

68 x $59 = $4,012

32 x $125 = $4,000

Total: $8,012

With three choices, one of which is stupid:

16 x $59 = $ 944

84 x $125 = $10,500

Total: $11,444 (an increase of 43%)

OK. Interesting, huh? Ariely's main point is that customers often aren't very good at knowing their own preferences, and they take cues from outside indicators of value, such as pricing options. By offering a third choice, even a ridiculous one, customers end up perceiving more value in the more-expensive choice. That's why Wendy's sells a triple cheeseburger — not to sell lots of triple cheeseburgers (they don't), but to sell more double cheeseburgers.

The moral of the story is not to offer ridiculous choices; it's to offer choices that lead your customers to find differing amounts of value in the various options — something you can't do if you bill by the hour.

The rest of Ariely's TEDtalk lecture is here. It's great, and it's only 17 minutes long. His book, Predictably Irrational, is here. I confess that I haven't read it yet, but it's definitely on my list.

Big thanks to Ed Kless who highlighted the video last December.

[Update 9/11/10: Ed points out in the comments below the effect this has on profits, given that The Economist's costs don't change. Very cool, Ed.]

What do you think? What kind of options can you offer to help your clients discover their preferences? Share your ideas in the comments below.

Can Inception plant ideas in the minds of lawyers?

Maybe. There are certainly some important lessons for members of the Client Revolution.

First of all, if you haven't seen the movie, do. It's the best movie of the year. It's also the smartest movie of the year — in fact, it's the smartest movie in a long time. You don't walk out of there thinking that you've seen the same thing before; it's a legitimate original.

If you've been in seclusion this summer, here's the general idea: Leonardo DiCaprio plays Dom Cobb, an expert in extracting information from people's dreams. But he's put to the test by a new client who wants him to do something much more difficult: plant an idea in a business rival's dreaming mind. That's "inception." They want their target, Robert Fischer, to break up his late father's business empire.

As Cobb and his team map out their heist, one of them raises a question central to the movie:

COBB

"I will split up my father's empire." Now this is obviously an idea that Robert Fischer will choose to reject — which is why we need to plant it deep in his subconscious. Subconscious is fueled by emotion, right? Not reason. We need a find a way to translate this into an emotional concept.

ARTHUR

How do you translate a business strategy into an emotion?

That's a question that all lawyers should ponder. As lawyers, we're trained to figure out a business strategy — in our case, a legal strategy. But we often forget that clients don't respond to business or legal strategies. Instead, clients — like all human beings — are led by emotion.

You want to become a rainmaker and bring new clients into your firm? Then figure out how to translate a business strategy into an emotion.

---

The second lesson for lawyers comes from behind the scenes. Turns out that as successful as the movie has turned out to be — making about $700 million worldwide to date, the most successful heist movie ever — they had trouble getting financing beforehand. According to E! Online, DiCaprio agreed to take less money up front in exchange for receiving "first-dollar gross" pay at the back end. In other words, according to E!, Leo is getting a cut of every ticket sold, and is already looking at a massive payday of more than $50 million.

Most lawyers fear so-called "alternative billing arrangements" (as they call them) — more accurately known as "value pricing" — because they're afraid that they'll end up making less money than they would if they billed hourly. Imagine if Leo had shared this fear and turned down the first-dollar gross arrangement in favor of his usual "billable hours." The actor obviously believed in the movie and in writer-director Christopher Nolan. His faith was richly rewarded.

Lawyers, let me plant this idea into your dreams: If you have faith in your clients and your cases, you might end up doing far better than if you just filled out your timesheet.

What do you think? Like the movie? Think it applies to lawyers? Wish you had gone into acting instead? Share your thoughts in the comments.

[Update 9/11/10: Click here for a link to an amazing article by Sam Adams (no, not that one) on Salon.com: "Everything you wanted to know about 'Inception.'" But do not read it before you see the movie; big-time spoilers abound.]

Why I hate "practicing law"

No, not the career. The phrase.

Why do we say that we "practice" law? It has a connotation that we need to practice before we get any good. "Keep practicing, counselor. You'll get there." (As in "Carnegie Hall," as the old joke goes.)

But my problem with "practicing law" is more serious than that. I think the use of the term subtly affects what we as lawyers think we should be doing. Let's see what my dictionary (the New Oxford American Dictionary, the very best) says:

verb [ trans. ] ( Brit. practise)

1. perform (an activity) or exercise (a skill) repeatedly or regularly in order to improve or maintain one's proficiency : I need to practice my French | [ intrans. ] they were practicing for the Olympics.

2. carry out or perform (a particular activity, method, or custom) habitually or regularly : we still practice some of these rituals today.

Here's where my problem is. "Performing an activity repeatedly or regularly ..." "Carrying out an activity habitually ..." And how about that use of the word rituals?

The way we describe to the world what we do is with these words that connote that we keep doing the same old thing. And that fits in perfectly with the nature of most lawyers. Precedent. Tradition. These are the watchwords of our profession.

But no one else "practices" in the business world. They innovate. Or they go out of business. The same is true for lawyers; we just don't like to talk about it. So we cling to our 1919 business model based on timesheets, like we used to cling to powdered wigs. Like we still cling to fax machines and bike messengers.

We need to stop "practicing" and start innovating, or those rituals we perform will soon become unnecessary and extinct.

What do you think? Agree? Disagree? Think I'm picking nits, or am I on to something serious? Shout out in the comments below.

What scalpers can teach law firms about discounts

Interesting piece in Tuesday's Boston Globe about how scalpers around Fenway Park are having a tougher season than the injury-riddled Red Sox. In anti–free market Massachusetts, scalping remains mainly illegal (although there are now some licensed resellers who perform the very same service). The Red Sox currently enjoy the longest consecutive-sellout streak in Major League history, at 608 games and counting. But that streak may be in jeopardy, as are the profits of the scalpers outside the oldest Major League ballpark.

Some people blame the economy. Some blame complacence in the Sox fan base after winning the World Series twice in the past decade (after a famous 86-year championship drought). In any event, the Globe article by Robert Mays follows around a few scalpers as they have difficulty selling their tickets for a recent game. Even after the game has started, one scalper is still trying to unload seats at a 200 percent markup. Here's the (ahem) money quote:

Like many of his colleagues, he is having trouble moving the seats. To a casual onlooker, the solution seems simple. Drop the price. But when the idea is brought up, the man in the gray cotton T-shirt quickly shoots it down.

“Let me ask you something,’’ he says. “If you owned a store, and you sold milk, and all your milk was about to go bad, and everyone held out until the last minute to buy your milk, and you dropped the price, what would happen?’’

He doesn’t wait for an answer. He explains that no one would be willing to buy milk at full price. The integrity of the product would be compromised.

(That's my emphasis on the last sentence.)

Law firms are often quick to throw discounts out to clients to get the business. Maybe they figure they can make it up with extra hours later on. But what lawyers tend to forget is that discounting the price of their services compromises the integrity of the product. The discount tells the client that the legal advice or representation is worth less. (Which is why I say that discounting is worthless.)

Price your goods (legal services, illegally resold baseball tickets, etc.) carefully. But don't give in to the easy temptation of discounting. It devalues your goods in more ways than one.

What do you think? Feel like legal services differ from baseball tickets in some fundamental way? Sound off in the comments below.