ON COURT
Should we bill our clients for work in court? Of course. But how about on court?
A recent piece in the New York Times by Matthew Futterman got me to thinking about this.
Futterman is not a lawyer. Far from it. He’s the Times’ deputy sports editor.
And he’s a runner—a long-distance runner. He runs marathons. That’s a long way, people: 26.2 miles—supposedly the space between Athens and Marathon. (A marathoner told me that the last .2 miles is the toughest. He did not take kindly to my suggestion that he run the .2 first—to get it out of the way while he’s still fresh.)
Futterman writes about running, of course, as well as other sports.
But here’s what caught my eye: “More often than not, as I run my mind drifts to my other obsession: writing. I often joke that I do my best writing when I am running, only I’m not kidding. * * * * There is a mystical quality to running that brings your mind to places it otherwise would not go. For more than a year, I struggled with how to tell the story of my new book. The answers . . . came to me on a series of morning runs during a Christmas week vacation to Rome in 2016, [when] the story flowed.”
Just like me! A kindred soul!
Well, not quite. I’m no runner. Too much torture, drudgery, and sheer work. I need a game with my exercise. So I’m a tennis guy. I play doubles thrice a week with my senior buddies.
In my younger days, I was pretty competitive. On my high school and college teams, my mind was in the game—totally. Winning was important to me then. And my off-court interests were not nearly as broad and distracting as they are now. (Well, my college game did drop off a bit when I discovered: young women!)
Today, my mind stays in the game for a while—but then it drifts off. And just like Futterman’s, it wanders to writing. Thinking up a new column (like this one). Refining an article. Outlining a book.
And writing a brief. I get some of my best insights about how to structure a brief or ways to present my dynamite justice argument while returning serves and knocking off volleys.
Which leads to a problem.
I come home from the tennis club and tell my business manager (aka my wife) about my terrific new idea for my latest brief. Always keeping her eye on the ball, she hits me with: “And you’ll bill for that time, right?”
She caught me off guard. I naively asked: “Is it ethical to charge a client for thinking about his case on a tennis court?” The Supreme Court of My Abode hammered down her gavel: “Yes! Absolutely!” Followed by a threat of sanctions: “You’ll do it or you’ll sleep on the couch.”
Still bewildered, I asked, “But what would we write on my time sheet?” She said, “Just put ‘brief drafting.’ It’s accurate, and covers what you did. You don’t put where you worked on your time sheet, do you?”
OK, I guess, but that left us with an even more difficult problem: how much? I can’t say that I was thinking about the brief every moment of my tennis game. I did need to watch the ball once in a while.
That leads inevitably to a much more fundamental issue: how should we charge clients for what we do?
The contingent fee is one possibility, but I don’t handle many appeals on that basis. I do take some cases on a flat fee, which avoids this problem.
Like most appellate lawyers, I usually bill by the hour. I keep time sheets that itemize my time and say what I did with that time—though often I can’t be more specific than “Drafted Appellant’s Opening Brief.”
I’m not sure where or how this billing-by-the-hour system started, but it’s always seemed to me that it’s based on a myth: it assumes that lawyers work like plumbers.
A pipe breaks, and you call the plumber. He shows up at 3 p.m. with his tool kit. He crawls under the house and examines the leak, and determines that it requires a special pipe that he does not have. He takes out his mobile phone and orders the pipe. He leaves your place at 4:00 p.m. When the pipe arrives a few days later, he takes another hour to install it. He bills you for two hours of work, total.
This is fair and reasonable—with no fuzzy edges. The plumber did all of his work while he was actually at your place. He spent no time thinking about your pipe when he was not on your premises. When he left, he could let his mind wander to last night’s Warriors game or a hot date he has coming up next weekend.
That is not how I work. Maybe some lawyers are able to put their cases out of their minds when they turn off the lights and go home at night. I don’t. I can’t. Call me obsessive, but I just can’t stop thinking about a problem until I get it solved. And every appeal I handle poses a problem—usually multiple problems.
And like Futterman, I find that physical activity fires up my writing neurons. Not just tennis. I swim. I play catch with my 9-year old son. (Back when I was law professing, I sketched out entire law review articles in my head—while hiking and fishing the Eastern Sierra.)
But would clients understand this? They’ve been habituated to the notion that lawyers work and bill like plumbers. But I have no doubt that my way of doing it gives my clients are getting the biggest bangs for their bucks—at least for my work. The ideas that come to me while moving my body—usually ideas about strategy and the overall theme of the case—are often the most important thoughts about the appeal.
This explanation sets the table for determining “how much” time to bill for tennis court thinking, but the number must still be an estimate. I keep it low, usually around 20 minutes or so (out of a doubles match lasting a couple of hours). I find this fair—to the client, to me, and especially to my business manager.
Thanks to Futterman for inspiring me to get this off my chest. Now maybe I won’t dwell on this problem while hitting backhands.