The Other Problem With Hourly Billing

Scott Greenfield writes about why hourly billing doesn't work for defenders:

First, sometimes our clients are criminals, and hence a tad short of trustworthy. Second, our clients can be mercurial, and their desire to pay fluctuates with their impression of how the case is going. Third, "stuff" happens, so even the best intended clients may find themselves about to go on trial and suddenly lacking in the wherewithal to carry the load. For obvious reasons, this creates a rift between lawyer and client that cannot exist if the lawyer is to maximize the potential of winning. The lawyer must focus on one goal, and one goal only. If his focus is split between the client and his fee, there will be problems. As for me, I have a somewhat different reason that pushes me far, far away from hourly billing. I do not want someone who has no idea how much time and effort I put into a defense to start questioning why I spent 7 hours "thinking".

I concur, and have two additional reasons that I avoid (and most of us probably should avoid) hourly billing. First, I'm no good at keeping track of my time. Like many trial lawyers (and other creative professionals) I often sacrifice the business side of the practice to get the job done right -- to take care of my people. The chances that I'll make any sort of record of the time that I've spent on a case are considerably less than 100%, especially since so much of my time on any case is spent "just" thinking. Second, and more important, if my clients had to pay me based on how much time I spent on their cases, they would have an additional motivation to plead guilty instead of going to trial. That decision should be made based on a careful balancing of the costs and benefits of the plea against the potential costs and benefits of trial. The costs of a plea often include imprisonment or other restraint. The costs of trial often include the risk of more restraint. When the cost of trial increases artificially (because the client will have to pay more for a trial), the client has an artificial motivation to accept more restraint than he otherwise should.