On Monday 4/24/06, Mississippi's only Holocaust survivor, Mr. Gilbert Metz, spoke to students and faculty at Mississippi College School of Law. Mr. Metz, a native of France who settled in Mississippi after World War II, talked about his experiences as a prisoner in the Auschwitz and Dachau concentration camps. His visit to the law school was, appropriately, on the eve of Yom HaShoah, or Holocaust Remembrance Day.
In my last post, I made the following unflattering (but true) statement about doctors and lawyers:[T]here are only two professions in the western world in which the customer is told, "I can help you, but I don't know how long it will take, and I don't know how much it will cost." Those two professions, of course, are law and medicine. Possibly accountancy too. Try running an ordinary business on that model and you will be out on the street in no time. Yet doctors and lawyers get away with it--although increasingly there are both time and cost pressures, and in the field of law there is a long overdue movement to flat rate billing.
A commentator ("mrspkr") asked the following excellent question, and I thought the answer deserved a separate post. Specifically, he asked:
How would flat rate billing work in a field such as civil litigation? I mean, I can see it for certain services such as patent work, uncontested divorces, adjustments of child support payments, drafting wills, probating uncontested wills, etc.; but just can't see how feasible such a system would be for any work of an adversarial nature.
Mrspkr, by the way, has his own blog called "MrSpkr's random thoughts . . ." So here is my answer.
The answer is that depending on your practice and how specialized it is, flat rate billing may be possible, even in civil litigation.
It's hard, yes, and perhaps riskier than billing by the hour, but the potential payoff may be greater. Perhaps I can best explain my answer by breaking it down into a series of points.
First, flat rate billing is (and should be) fairly prevalent in some smaller-scale practice areas, like wills and estates, real estate closings, etc. But the same principles can be applied to more complex matters.
Second, a complex matter is a complex matter, regardless of whether it is litigation or transactional work. A big hairy corporate deal is full of unanticipated twists and emergencies, much like a big litigation project.
Third, there are firms out there I know of that flat rate some of their big transactional projects. And not tiny projects, mind you: big stuff. My old firm used to do it. Sometimes we took a loss. Not really a loss; rather, it's just that we could have done better billing by the hour. But sometimes we did better through flat rate billing.
Fourth, the key to any flat rate scheme is that you must have the ability to estimate how much time you will be spending on the project and what that means in terms of billables. If you or your firm are good at particular kinds of cases or transactions, for example--if you are, say, specialists in a particular area--then that improves your ability to estimate costs and fees, and thus to use flat rate billing.
Fifth, being able to estimate how much time you will spend on a project means you have to go through the exercise of identifying all the phases of the project and estimating what they will entail. That's a very useful exercise: instead of just saying to the client, "Sure, we can help you, let's get started," you have to figure out up front what you expect to be doing in all phases of the project and what you think it will cost the client for each phase. Your estimate will not be perfect, but it will give everyone a better idea going in of what the project involves.
Sixth--and following up on the previous point--for many larger projects you may not be able to give an exact flat rate, but rather a range. That's not flat rate billing, precisely speaking, but it is helpful to the client.
Seventh--and another follow-up to point to #5 above--if you cannot give a flat rate for the whole project, you still could offer to flat rate bill certain components of the project. In a civil litigation case, for example, you might be able to give separate flat rates for the original complaint, amended complaints, reponses, various motions, depositions, etc. After all, in trying to come up with an overall estimate of cost for the project, you already should have identified likely components or phases of the project and tried to estimate their costs. So the client can be told what the charge will be for each phase or component, even if the exact composition of phases or components cannot be determined in advance. The same can be done for transactional projects. It's sort of like buying a car and choosing optional upgrades--you price them individually or in groups.
Eighth, in all of the above points, the overarching theme is that the lawyer who uses flat rate billing is trying to give his client some sort of fee predictability. Companies and individuals like to have known and quantifiable costs, instead of running a tab. Even a price sheet for possible phases of a project is better than the sales pitch, "Hi, my billing rate is $300 an hour. Hire me!"
Ninth, if you are really good at estimating flat fees, you can build in a premium for yourself: the client pays a bit more, in return for predictability of fees. Enough said.
Tenth, when you offer fee predictability, you tend to look like you know what you are doing versus the lawyer who refuses to use any flat fees. Clients are increasingly unimpressed, in my experience, with lawyers who simply want to do the work without engaging in some sort of cost analysis and strategizing about time and cost. After all, that is what companies do all the time in their businesses.
Eleventh, at least in the transactional world, flat fee billing is already widespread on a de facto basis. In nearly all large (transactional and regulatory) legal projects I was involved with in my later years in practice, the client would ask us for an estimate. In some cases we billed by fixed fee, in some we used a fee cap. And in some we only gave a nonbinding estimate--but woe to the lawyer who gives an estimate and then does not stay at least somewhat close to it without justifying the departure. And note that when we did use a flat fee, we carefully defined the scope of the work, in order to make clear what was and what was not covered. Again, the key is strategizing about what work is needed for the project, and what isn't.
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So what does all of this mean? It means that lawyers today need to act more like business people, clearly identify where they add value, and assign an actual dollar amount to that value added. Flat fee billing and its various permutations (upward cap, estimate, etc.) are a way to do that. I think you may see more of it in the litigation field in the near future.
These billing trends also, I think, tend to commoditize the practice of law, since on larger projects you break each project down into its sub-parts to try and price it out. That is helpful for making the lawyer think about her value added at each stage of a large project. But it's also helpful for the client too, since the client can pick and choose what you (the lawyer) do versus what the client does inhouse or farms out to someone else who can do it cheaper.
After all, as a lawyer you are supposed to be adding value, right? So tell the client what you propose to do, how much it will cost, and how it adds value. It's a good sales/promotional strategy. It keeps you honest, and it helps keep your clients satisfied, because they get a better sense of what they are getting for their money. And a satisfied client is more likely to be a more loyal client.
I received a very good anonymous question in response to my post yesterday ("Of Politics and Law Schools"). The question was as follows:Finally a blog by a law school professor. Do you grade according to a curve? Are you forced to because of your school? And if yes, do you find a forced curve is the best way to judge student performance?
In addition to brilliantly stroking my ego ("Finally a blog by a law school professor"!), this comment raises excellent questions about the use of grading curves in law schools, which I will try to answer below. Final exam season is upon us, after all, so this is a timely topic.
But first, in the interest of full disclosure I should say that there are a fair number of other law profs out there who blog. Some of these blogs are linked to on my blog. However, my focus is a bit different than most other law prof blogs: I focus on student and junior practitioner issues.
Anyway, back to the questions at hand.
Do I grade according to a curve? Does my school require me to use a curve? My school does not require the use of a curve, so this is left to my discretion. In small classes I do not grade according to a curve. In large classes I do. But here's the interesting thing about curves: in my classes at least, curves typically have no effect on the distribution of grades, or they work in students' favor.
Let me explain that a bit. In my experience, a properly constructed law school exam leads to a bell curve distribution of grades. A good exam will have easy issues on it, hard issues, and some issues in between. The easy parts show me who understands the most basic aspects of the course. The middling-hard aspects are mastered by fewer students, and this represents the middle of the class. And the hard stuff allows the top students in the class to shine.
So yes, I sometimes grade using a curve of my own devising. But it is usually grade-neutral or actually helps students (i.e., not everyone gets a C).
Am I in favor of a forced curve as the "best" way to judge student performance? The "best" way? Let's limit the question to whether I am in favor of its use in large classes, since there are lot of other ways students should be evaluated (e.g., writing papers, trial and appellate advocacy programs, clinics, etc.). I'm actually still undecided about the mandatory use of curves in large classes. One argument in favor of forced curves is that they help to harmonize grades across different sections of the same class. If you have a tough-grading professor for Contracts and the other section has a softie, why is that fair? Wouldn't it be better to have some forced consistency, so that the tough professor has to give a minimum number of As, and the easy grader can't give give everyone As?
On the other hand, it is a bit of a shame for a good exam paper to get bumped down by a curve. But again, in my experience a well-constructed exam largely avoids that problem. So perhaps I lean slightly in favor of mandatory curves for large classes. But I could be persuaded otherwise.
Any comments or thoughts?
This is my first post for a while, after coming up for air from a variety of other pressing matters. After not blogging much recently, the question I asked myself was, "On what urgent subject should I pontificate?" I keep a list, you see, and it always grows larger instead of smaller. What's a poor law school professor to do?Yet these days, Berkeley administrators look at Yoo . . . as just another qualified professor teaching constitutional law. When asked why the school provides a home for such a polarizing and controversial figure, Louise Epstein, assistant to the law school dean, told us, "We don't know if we can tell you that, because you are asking a heated question that I just don't know we have the answer to."
That is an absolutely astonishing excerpt. A liberal institution is being taken to task for providing a diversity of viewpoints to its students! We have a liberal law school supporting a deserving conservative scholar. The merit of that approach should be self-evident, shouldn't it? And yet the protesters (and the newspaper?) apparently believe it is bad for a proudly liberal law school to have a conservative with strong credentials on the faculty, and that the school should not provide its students with differing viewpoints. Shame, shame.
Even the law school seems uncomfortable with its position on Yoo! Re-read Louise Epstein's waffling statement above. Maybe she was uncomfortable making a statement because she is not on the faculty, so let's not be too hard on her. But I would have liked to see the law school be defiantly proud, since having Yoo on faculty does foment discussion and debate--which are good things in law school.
Interestingly, I haven't found a report about a conservative law school hiring (or refusing to hire) a left-wing liberal, but there are liberal professors at conservative law schools. I work with a few. And, by the way, the diversity of views they bring is a good thing for our students.
By the way, look at the picture at the top of this post again. Justice may not be blind in all cases--but at least it is balanced.
