Billable showers

Vanessa is a senior litigation associate at a large Northeast law firm. She is a hard worker, a good writer, and a very intelligent young woman. She bills at $575 an hour. She carefully tracks her time.

One afternoon, she is working on a summary-judgment brief. She is focused on a tricky jurisdictional issue that is central to the case. She has just come up with what she feels is a clever approach based on a casenote she just read. She goes onto Lexis and downloads the case. She prints it and reads it carefully. It seems helpful. She then looks up similar cases, finds 24 of them, and reads or skims all of them. She takes careful notes, and she starts outlining this section of the brief. Then, to her dismay, she finds a more-recent case that changes the law in her jurisdiction. This shuts the door to her clever argument. She puts her research and her notes into a file folder, and she deletes the outline she had been working on.

She checks her computer clock, pulls out her timesheet, and enters the 3.6 hours that she spent on this work, along with a careful description of the tasks she performed.

The next morning, well before sunrise, she's taking a shower. After lathering, rinsing, and repeating, she suddenly gets a brain flash on how to solve a different issue in the case. Collateral estoppel! Of course! As the hot water splashes over her, she realizes that she's just come up with a killer argument for her brief. She'll do the research when she gets into the office, but she's certain it will work.

While she's dressing, she grabs her Blackberry and makes a note of the time she just spent working on her case. She puts down 0.3 (including the rinsing and the repeating), because she spent at least 18 minutes analyzing the issue.

• • •

The brainstorm in the shower proved to be the winning argument in the summary-judgment brief, saving the client hundreds of thousands of dollars by avoiding a trial. The 0.3 hours cost it $172.50, assuming Vanessa did not expense her seaweed conditioner.

The time she spent doing jurisdictional research for her brief proved to be wasted effort. None of that work benefited her client. The 3.6 hours cost her client $2,070 (plus the marked-up cost of the online legal research).

To all you lawyers who bill by the hour: please explain to me why the online-research work was worth 12 times more than the brainstorm in the shower.

If you are paying attention to the value the client receives, you wouldn't bill by the hour.

You'd bill by the shower.