THE NEW YORK TIMES ASKS WHY SO FEW WOMEN REACH THE TOP OF BIG LAW FIRMS, PART 3 OF 3: BILLABLE HOURS

I am willing to bet that billable hours -- and its unfortunate effects on law firm culture -- is the biggie in terms of why women are less likely than men to stick around at a law firm long enough to rise through the ranks. 

PART A:  FOR NON-LAWYERS:  WHY BILLABLE HOURS SUCK

Billable hours suck royally.  Sometimes it is hard to explain to people outside the profession why billable hours requirements are so debilitating.  At my last firm, lawyers were expected to bill 1800 hours of our time to clients per year.  That amounts to between 38 and 39 hours a week, assuming that the attorney takes her four weeks vacation (HA!) and every holiday (not bloodly likely).  When I was kvetching about this to my brother-in-law who works at a 9-to-5 job, he said, "Oh, well that doesn't sound so bad.  Most people work 40 hours a week."

The problem is that it's not like you just punch in, fasten widgets steadily throughout the day, and then punch out.  The time you spend doing client work is harder to quantify because it is thinking work.  When I am developing an argument for a pleading, I might pace around while I think it through.  And as I am thinking it out, maybe my mind wanders, and I am not thinking about the case the whole time I am pacing.  So then I have to try to come up with a reasonable estimate as to how much time I actually spent developing my argument.  Or maybe it will simply take me a lot longer to figure out my argument then I can reasonably bill to a client.  (The client sees the crisp, clear final product and then says, "What?!?!? It took you FOUR hours to figure this out?")  Also, if you are doing a lot of small tasks like writing letters or making phone calls, you lose time when you shift gears between tasks. And it's not like you're on an assembly line without any distractions.  You also lose time because the phone rings, your secretary has a quesion, people pop in to say "hi," and you therefore get distracted. My old boss claimed that it takes about 12 hours at the office to bill 8 hours in a day.      That seems about right, based on my experience.

On top of the difficulty of actually generating the required billable hours is the fact that law firm lawyers have a lot of other time-consuming responsibilities that are not billable.  These non-billable responsibilities include speaking at seminars and preparing seminar materials, publishing articles, producing newsletters for clients, attending social events with clients, attending in-house meetings, working on in-house administrative tasks (such as interviewing prospective hires, or rewriting the firm's employment manual), working on pro bono cases (cases taken free of charge for indigent clients), and meeting the required 12 hours per year of Continuing Legal Education credits for maintaining one's bar membership. 

The most demoralizing aspect of billable hours for me occurs when I am on top of all my cases and don't have any pressing case-related reason to work over the weekend.  But then I realize, "Yeah, I may be on top of all my cases, but I am behind on my billable hours so I need to work ahead this weekend on my non-pressing matters so I can then volunteer for more work later and thus meet my billable requirements."  I HATE working when I don't need to just for the sake of producing billable hours.

I should also note that the 1800 hour requirement at my last firm is actually considered modest in many locales.  My current firm also has an 1800 hour requirement but you are actually expected to bill about 2000 hours in order to advance within the firm.  I have heard that, in major metropolitan areas, it is not unheard of for attorneys to be struggling to meet billable hours requirements of 2200 or 2400 hours.

And to make matters worse, for the most junior associates, the tasks that they are asked to do in the largest law firms are often mind-numbingly tedious -- like reviewing thousands of pages of documents, many of which are irrelevant, to determine what is important to a particular case.  I think for many of them it is hard to see the light at the end of the tunnel, to envision a day when they will be asked to take on more responsibility or do more exciting, creative and analytical tasks.

PART B:  WHY THE SUCKINESS OF BILLABLE HOURS IS MORE LIKELY TO DRIVE WOMEN THAN MEN AWAY FROM LAW FIRMS

The billable hour model often requires even the most efficient lawyers to work around the clock, on weekends, and on holidays.  If you are inefficient or have a blog that you spend time on, God help you.  Both male and female associates suffer under this regime, but it is more likely to drive female associates away for a number of reasons.

A)  For various cultural reasons, women often are reluctant to engage in self-promotion, a fact I noted in the previous post. Since billable hours is sometimes about estimating how much time you spend on a project, women are at a disadvantage because they are more inclined to underestimate how much time they spent.  When I first started billing, I often found myself thinking, "I know I timed my work on this motion at 8 hours, but I can't believe that this work could have taken me that long, so I'll just put down 4." I self-edited my time both consciously and, I think, unconsciously.  After I got favorable results on a few summary judgment motions and in my first civil jury trial, I found that I was more confident in my work and therefore more inclined to bill for all my time, but I still struggle with this issue.  I suspect men tend to be more likely to think well enough of themselves to bill all their time.

B) Women are operating under both internalized and externalized expectations that they will be the primary caretakers for their children.  It is (I imagine) awfully difficult (if not impossible) to work around the clock, including holidays and weekends, when you are the primary caretaker for a young child.

C) Even if you are splitting childcare duties 50-50 with your spouse, it is (I imagine) awfully difficult (if not impossible) to work around the clock, including holidays and weekends, and take care of a child.  Women generally can expect at best a 50-50 arrangement with a spouse and even that is not good enough if you are a lawyer at a major law firm.   Men who have a 50-50 arrangement with a spouse for childcare are in the same  boat.  BUT the thing is that there are always going to be men with wives who take on ALL of the household and childcare responsibilities, whereas there will rarely be women who have husbands who take on ALL of the household and childcare responsibilties.  So the people most likely to succeed in a law firm are the childless, or people (almost always men) who have spouses fully dedicated to childcare. 

D)  A lot, if not most lawyers, I know at large-ish law firms are absolutely miserable.  As one lawyer in the New York Times article noted, "They don't like being part of a billable hour-production unit.  They want more meaning out of their lives than that."  This goes for both men and women.  The problem is that it is a lot more socially acceptable for women to leave either to stay home with children or to take a less lucrative and time consuming position in the public sector or elsewhere.  Men are still under this incredible pressure to stick it out in order to be "providers" and take in the greatest possible income that they can.  For lawyers, the greatest possible income is usually the income one earns at a large law firm.   

PART C:  IF LAW FIRM LIFE SUCKS SO BADLY, WHY DOES IT MATTER THAT WOMEN ARE LEAVING?

There are potentially enormous rewards to rising through the ranks in a law firm.  These include not only the healthy income, but also the opportunities to exercise considerable influence over the profession of law (although I wish the major law firms would band together and do something about this horrid billable hour issue), and to take on fascinating, complex and high-stakes cases. As one of the women partners quoted in the article stated, "I have found my legal work and public service enormously satisfying, and I would never want to be without that . . . I truly believe that lawyers make a huge difference in society and I think it's a loss when women decide to leave firms."

The problem is that these enormous rewards are often simply not worth the misery of the billable hour regimen, especially for people who have families.

Comments

[TangoMan]

band together and do something about this horrid billable hour issue

What, in particular, should be done?

We know that the issue of pay disparity has now disappeared. A study from the U. of Michigan tracked law school graduates and found that senior female lawyers (those who graduated before 1991) started with pay differentials, but this was eliminated by 1999. Also, on objective criteria like grades, GPA, etc there remained an 11% differential, but the study didn't look at issues like ability to bring in clients and the amount of hours billed, which as you note are a huge aspect of life in the career of a lawyer.

Watching the response to this issue will be very informative, for my prediction is that feminists are less concerned with equality of opportunity and more focused on equality of outcome. The road to achieving equal outcomes is clear, but I sense that there is going to be a call to reform the system so that outcomes can be equalized, and damn the loss of revenue/lawyer that it will cost the firms. It doesn't matter that the firms institute no gender specific roadblocks on the opportunity route - that's not good enough.

So, back to my original question to you - if the outcomes need to be equalized and the most effective way of doing that is by cutting back on billable hours drudgery then how will the revenue shortfalls be replaced and how will lawyer salaries be maintained? Lastly, what should be done about the go-getters who still practice the billable hours drudgery and bring in disproportionate revenues to the firm? Should they not be rewarded? If not, why not? Further, while some firms may institute a "more friendly" policy to address feminist critiques about unequal outcomes, what is to stop the top billers from leaving the firm, taking much of their reveue with them, to new firms that aren't as sensitive to feminist issues on equal outcomes?

I'm really stumped about what feminists think should be done about onerus work place requirements?

[Interrobang]

I run my own technical writing company, which isn't quite the same as lawyering, but I still have an ideal number of billable hours I have to put in if I want to make any money in the month. (Whether or not I have the work at the time to do that is another question.) So yes, I can also attest to the extreme suckitude of being a slave to billable hours. It might take me 5-8 non-billable hours to land and negotiate a contract with a prospective client, and then there's administration, bookkeeping, marketing, sales calls, etc. I'd say your ratio of one non-billable hour to every two billable hours is about the same for me. In my line of work, though, we'd call it "maximum production capacity."

[Anne]

It's not just lawyers. There are a lot of us out here being pressed to produce documentation that the vast majority of our time is "billable hours."

Personally, I think an estimate of 12 work hours to produce 8 billable hours is still a bit tight. I'd say 2-1 is a more rational ratio, over the long term.

[The Happy Feminist]

Hi Tango Man --

I disagree strongly with your belief that feminism is about producing equality of outcome without reference to equality of talent or achievement. The problem feminism attempt to address is the lack of equality of opportunity. Right now, because of cultural expectations regarding gender roles on the home front (and perhaps some of the other factors I have discussed), there is NOT equality of opportunity for achieving law firm partnerships.

I should also note that billable hours is not only, or even primarily, a feminist issue. In the forty years or so since it was adopted, the billable hours model has had a widespread and very damaging effect on morale across the profession among both men and women.

I don't think anyone is suggesting that being a law firm partner isn't gonna take a lot of TIME and WORK. The problem with the billable hours model is that it is DEMORALIZING because compensation is not tied to results but rather to spending time on work just for its own sake. I think men and women would be more willing to make personal sacrifices if there were more focus on results rather than on being "billable hour production units."

The potential solutions about which I fantasize are two-fold: (1) alternative billing arrangements that reward efficiency rather than sheer human hours; and (2)the evolution of cultural expectations regarding gender roles on the home front.

I know the ABA has studied alternative billing arrangements. I am not a huge expert on the efficacy of these billing arrangements. For all I know, billable hours is what we're stuck with for practical or economic reasons of which I am unaware. (The parenthetical comment in my post to which you alluded was intended as a sort of flip "throw away" comment, not something to which I have given a great degree of thought.) However, I like to think we can come up with something better.

[mythago]

Rather than let TangoMan turn this into yet another excuse to start a pro- v. anti-feminist argument, I'd note that nothing will be done as long as the dominant BigLaw model is a Ponzi scheme. Associates are offered dazzlingly high salaries, and it doesn't occur to them that the firm expects to make a profit higher than that salary--and they do so by squeezing billable hours out of the associates. The salary is fixed, therefore the more billable hours from an associate, the more profit. And partners get their income from the firm's profit.

The only real solution is to work somewhere that doesn't have a pyramid model. Unfortunately, because the model is slanted toward the partners, there is zero incentive to change. Associates burn out? Who cares, there's another crop coming in next year. Women aren't advancing? Get a few female partners to be mentors, and contribute lots of pro bono time and money to women's causes, so you can deflect any accusations that you discriminate.

Coming from the other side of the equation (I work at a plaintiff firm, so we don't have 'billables', although we do have time requirements), the billable-unit factory makes for an awful lot of crappy, unnecessary work, both because the people doing it are inexperienced (high turnover = not many experienced people stick around) and because billing is not synonymous with the client's best interest. One firm in particular routinely sends me a particular kind of motion, and when I call them and tell them it's frivolous, they take it off-calendar. But in the meantime, some associate got to rack up billable time working on it. Another firm is notorious in that I've defeated several of their Motions for Summary Judgment based on their failing to include important forms, or even file the thing on time. But you bill for a crappy motion just like a good one, and unless the client bothers to read the transcript of the hearing, they won't know the difference between 'we lost because the facts weren't there' and 'we lost because Idiot Associate, Esq. put the wrong plaintiff's name down through the whole motion.'

[TangoMan]

I think mythago has described the overall system very well. So the question should be how to determine salary level without the firm assuming the entire risk of not having the associate generate enough revenue to cover their own salary and overhead. With billable hours the calculus is very plain - if you bill X hours then the firm knows that its financial obligations are covered.

If new lawyers, men and women, don't want to jump on the billable hours train, then they can accept 1.) lower salaries dependent upon actual hours that are billed, 2.) variable salaries dependent on case success and bonuses, 3.) or some other metric which shifts the variabiliy onto the lawyer rather than the firm.

The problem feminism attempt to address is the lack of equality of opportunity. Right now, because of cultural expectations regarding gender roles on the home front

Then it's not the law firm's problem. The feminist battle should really be fought with the significant other of the feminist. If a woman wants to advance in her law career and achieve partnership then a firm which creates an equal opportunity environment, which most do, doesn't have to do anything in particular to aid women in that quest. All the women need to do is create a homelife like those of their male colleagues. To paraphrase the Clinton election motto, "It's the Homelife, Stupid."

If women aren't willing to reengineer their home life or partner with a supportive spouse and instead want the law firm to ease their path to partnership with women friendly policies, then that's not simply being content with equal opportunity, it's engineering mechanisms to assure equal outcomes. Not being satisfied with a fair workplace and only being satisfied with higher proportions of representation is the telling clue here.

[The Happy Feminist]

Tango Man, I think you're saying EXACTLY what a lot of feminists have been screaming! That changing American homelife is key. See for example, Radical Married Feminist's Manifesto. The limitations women still face at HOME are an enormous issue.

What rubs me the wrong way is your phraseology, Tango Man. You seem to be placing the onus entirely on individual women, whereas I think it's important to recognize that individual women are facing an enormously difficult uphill battle against ingrained cultural expectations. It's not that easy to insist that your man be the homemaker when men are virtually NEVER the homemaker in our culture. Now, I'm not saying we can or should legislate solutions but we sure can criticize the heck out of the cultural expectations to try to change people's minds and to change people's assumptions -- and that's what I try to do.

Part of that culture we see in law firms. Like the automatic expectation that a woman who has kids is going to be less productive. Or the existence of a maternity leave policy without an equivalent paternity leave policy. Or greater disapproval of a woman who leaves early to care for a sick kid than a man who just takes off to do something fun. That's NOT what I call a fair workplace.

[The Happy Feminist]

And again, coming up with alternatives to billable hours is not just a feminist issue. It's an issue regarding both morale and quality within the practice of law -- which traditionally was considered to be a "profession" first and a money-making endeavor second. I think that Mythago hit the nail on the head when she pointed out that there is little incentive for partners to "fix" this, but at the same time, clients aren't at all well-served by the high-turnover and the emphasis on hours rather than quality.

[TangoMan]

You seem to be placing the onus entirely on individual women, . . . . facing an enormously difficult uphill battle against ingrained cultural expectations.

That's exactly what I'm doing because I don't appreciate being dragged into a societal battle for domestic change when my wife and I have already negotiated how we live our lives. I don't appreciate having someone else's values being imposed onto my homelife. My wife and I sacrifice for each other, as every couple does, and I've gone so far as to move internationally and change career (temporarily) for the benefit of her career and likewise she's taken a number of years off from her career to have our children. I don't want my life inconvenienced because some woman doesn't have the moral fortitude to negotiate with her husband for a homelife that is more to her liking.

Further, I emphatically disagree with a top-down approach to cultural change. Some leading feminist thinkers design an approach that they think is marvelous and then push to have it implemented. Sure, it satisfies their agenda, but it does nothing for my family's priorities. Societal change occurs on the margins and it happens incrementally. Every household is a battlefront, not every workplace and every legislature. If a woman can't negotiate a satisfactory solution with her spouse, the problem is her marriage, and her problem shouldn't become my problem or society's problem.

It's not that easy to insist that your man be the homemaker

So, because it's not easy for a particular woman to change her marriage dynamic, then policies to address this issue have to be stuffed down my throat, and I have to make accomodations in my life and my workplace so as to make her homelife easier. Huh?

criticize the heck out of the cultural expectations to try to change people's minds

What I'm saying is that each woman should criticize that which she knows, her marriage, and feminists should keep their noses out of my marriage, for my wife and I have achieved a fair outcome, which involves each of us sacrificing for mutual benefit. I don't want to hear about how feminists think we should live our lives and I don't want them to change my mind for they certainly don't know what is best for me or my wife or my children. The whole top-down philosophical approach of a "better way" is deeply offensive and I regularly see the victims of feminist ideology confronting the circumstances of their lives because they bought the whole top-down approach hook, line and sinker.

[TangoMan]

we sure can criticize the heck out of the cultural expectations

In rereading your comment I'm wondering how much you subscribe to the position that cultural expectations are divorced from reason and simply exist through inertia or are irrational. Do you think that everything cultural can be changed to fit ideology? You don't touch on these issues in this post so I'm left baffled by whether you think that cultural expectations may actually exist for structural reasons.