Oregon State Bar Bulletin — FEBRUARY/MARCH 2016









On this old rock pile with a ball and chain They call me by a number not a name, Lord, Lord. Gotta do my time, gotta do my time With an aching heart and a worried mind. —Jimmie Skinner, “Doing My Time”

Time. We lose it, find it, keep it, make it. As prisoners on the chain gang, we “do time” as though hours and days were the currency used to pay our debt to society. Indeed, time is money. It must be so, because we are always spending it or wasting it, investing it or trying to save it. Attorneys have a special relationship with time: We sell it, in high-priced units called billable hours.

Billing Time

My mind, my time are my merchandise…. —Bao-Quan Pham, “I’m Billing Time” (parody of Cindi Lauper’s “Time After Time”)

The billable hour is only about 50 years old. Charlie Hinkle, who began his career as a litigator in 1971, remembers when itemized bills were the exception, when clients of Davies, Biggs, Strayer, Stoel & Boley would receive a monthly bill “for services rendered.” In the 1970s, many bar associations, including Oregon’s, published minimum fee schedules, their purpose to prevent lawyers from under-bidding and therefore lowering the value of legal work. The American Bar Association’s Model Ethical Code “condemned as unethical any attorney who ‘undervalued’ his services and thereby encouraged price competition.”1 Hinkle recalls the fee schedules, regularly distributed by the state bar (graphic, next page).

Then Hinkle found himself assigned to a case with senior partner Manley Strayer, defending the Oregon State Bar against a complaint filed by the United States under Section 4 of the Sherman Act. The issue: Whether the bar’s minimum fee schedule constituted price fixing, a per se violation of the Act. In the bar’s motion for summary judgment, Strayer and Hinkle argued that “in light of the high standards and duties of the legal profession, the ordinary price competition for business has no place,” and accordingly the bar was exempt from Section 4 restrictions. United States v. Oregon State Bar, 385 F. Supp. 507, 516 (D. Or. 1974). The district court disagreed and denied the motion in November 1974. Three weeks later, the Oregon State Bar withdrew what was then called the “suggested fee schedule,” notifying all members of its cancellation. In June 1975, the Supreme Court of the United States put an end to the matter in Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975), concluding that minimum fee schedules violated antitrust laws.2 The district court granted the bar’s motion to dismiss the Oregon case for mootness.

Author Paul Barrett calls the Goldfarb case a “turning point,” the event that “helped usher in the era of the billable hour.”3 Law firms began the switch to an hourly billing model that was “intensely profit-driven.”4 In the new system, attorneys’ productivity, profitability — and ultimately, their value — began to be measured by the number of billable hours they produced.

That is perfectly understandable. If we all worked in a pretzel factory, those of us who could fold the most pretzels in a work day would be the most valuable employees. More pretzels, more profit. In the law firm, hours are the units of production. Just as producing more pretzels is better, producing more hours is better, too, with no apparent limit. But that is where the analogy goes awry. The pretzel maker goes home at the end of her shift. For the lawyer, selling hours of time, the end of the shift never seems to arrive.

There is a lot to criticize in the billable-hour model. Because “more is better,” law firm culture pushes relentlessly those who toil on its production line.5 The quality of the results, and the value to clients, can become secondary considerations.6 But by the end of the 1980s, law firms were making boatloads of money, selling time. In 1983, the average number (a real, audited number) of billable hours for lawyers at the New York firm Wachtell, Lipton, Rosen & Katz was 2,500. Author James Gleick wonders when those lawyers found time for anything but work, things like eating, “going to the doctor, or just pausing to gaze unbillably out the window.”7

Anne-Marie Slaughter, who criticizes the “cult of billable hours afflicting large law firms,” believes that the “culture of ‘time macho’ ” is “astonishingly prevalent” among all professionals.8 “Finding time” seems to be our common endeavor, time for all the complexities of 21st century life, for sorting out the constant bombardment of information, for attending to our obligations and for the myriad, pressing demands on our attention. For lawyers and for other professionals, scarcity of time is a given — and perhaps even a symbol of status.9

Every day is still 24 hours long (roughly: see sidebar). But surely something has shifted in our psyches. We were not always so obsessed with time, carving up hours and minutes, finding time and making time and applying “sophisticated critical-path scheduling algorithms to the second-by-second minutiae of daily life.”10

How did we get here?

The Invention of Time

Time, time, ticking on me... —Tim Hanseroth (performed by Brandi Carlile), “What Can I Say”

The clock made its debut in the belfries and towers of medieval Europe with the development of urban centers and an increasing population of city dwellers. Life on the farm involved “temporally regular work patterns,” but they followed the rhythms of night and day, seasons of growth and harvest.11 Once the agrarian population moved into towns and cities, the temporal patterns of work were “essentially artificial,”12 and time belonged to the community itself, signaled by the bells in the clock tower. Indeed, the invention of the clock was so significant that it warranted a new name — clock in English; klokke in Dutch; Glocke in German — all of which derived from the Latin word for “bell.”13

In Revolution in Time: Clocks and the Making of the Modern World, David Landes writes that the “clock did not create an interest in time measurement; the interest in time measurement led to the invention of the clock.”14 Perhaps it is something innate within the human creature that wants to divide the day into hours. In a foreshadowing of our present-day obsession with the miniaturization of electronic devices, the clock became ever smaller and more personal. By the 15th century, the timepieces of Europe grew portable and moved from the clock tower into the house.15 From there, the pocket watch came into vogue, heralding an age of watch chains, fobs and tiny pockets in vests and blue jeans. Late in the 19th century, someone finally thought to strap the timepiece around the wrist. The wristwatch arrived and, sadly, “[i]nto history vanished all the exquisite paraphernalia and body language of pocket watches.”16 Everybody knows what time it is, at virtually every moment.

“Just knowing the time serve[s] as an accelerant,” writes James Gleick in Faster: The Acceleration of Just About Everything,17 as though our clocks were stopwatches and our lives a sprint to the finish line. We seem to rush around like Lewis Carroll’s White Rabbit, who brandishes his pocket watch and cries, “I’m late! I’m late!”

“Tempus vitam regit” is the motto of the National Association of Watch and Clock Collectors.18 “Time rules life.” Is the band around your wrist a nifty accessory, a helpful time management device — or a shackle?

Hurry Sickness and the Dilemma of the Water Flea

Slow down, you move too fast ... —Paul Simon, “The 59th Street Bridge Song (Feelin’ Groovy)”

Consider Daphnia magna, the water flea. It is shaped like a kidney bean but less than a third of its size. Its shell, or carapace, is transparent, so the water flea’s coloring is based on whatever it has recently eaten. Its life span is measured in months. The water flea’s heart rate increases as the temperature rises: At 46 degrees Fahrenheit, it can live nearly four months; but at 82 degrees, its life span shortens to one month.

James Gleick posits that we face the water flea’s dilemma — the complexity of our technological society causes the equivalent of a quickening heartbeat. The temperature rises, and we careen and carom through our lives with “ever-greater urgency,” packing more and more into the same 24-hour day, convinced that time is scarce.19

Meyer Friedman and Ray Rosenman, the two cardiologists who invented the term “Type A,” also coined a name for this rushing-around behavior: “hurry sickness.”20 Hurry sickness is a “malaise in which a person feels chronically short of time, and so tends to perform every task faster and to get flustered when encountering any kind of delay.”21 Technology, which is supposed to make our lives easier, instead contributes to the malady, thrusting us into an “uber-fast, uber-techno world” where hurry sickness is an epidemic.22 Using our clever electronic devices, we can check phone messages and email anytime and anywhere — so we do. Many of us have to struggle to avoid doing it. Some of our clients and colleagues expect it. Richard Jolly, an executive coach and business school professor in London, tells of a client’s solution to managing email messages while on vacation: He left an auto-reply message, giving the dates of his absence from the office. But he also created a separate email account, so his office could contact him in an emergency. The address? “goaheadand ruinmyvacation.” No emergencies occurred.23

Attorneys seem especially prone to hurry sickness. Undoubtedly, part of the reason is that most of us think of time as a commodity, available for purchase in six-minute increments. Another part is that having an overfull schedule is a sign of importance, a “negative status symbol in that the less free time you have, the more prestige.24 We criticize the mischief of those with “too much time on their hands”; implicit in the criticism is that the less harried are less significant in the thrum and bustle of genuine business.

Prestige and self-importance are partly to blame for the blurring of the distinction between work and leisure, between time “on the clock” and “time off.” It may be that we crave the rush of time pressure even when we’re not working, or that we want to feel important in our off-hours, too. There is sociological evidence that we all spend more time working,25 so perhaps our constant haste is the result of trying to cram all our off-duty tasks — bathing, exercising, socializing, parenting, reading the paper (remember the paper?) — into a smaller allocation of hours.

On This Old Rock Pile

The clocks ticked as usual. Seconds beaded into minutes. Minutes grew into hours. —Karen Thompson Walker, The Age of Miracles (2012)

But why do we think of time as a scarce resource? We could blame the clock, the computer and their precocious love-child, the smart phone. Two thousand years ago, the Roman playwright Plautus raged against the sundial: “The gods confound the man who first found out how to distinguish hours! Confound him, too, who in this place set up a sun-dial, to cut and hack my days so wretchedly into small portions.” The source of the problem must be our compulsion to measure time, and then to conduct every aspect of our lives in servitude to the “small portions” we have created.

In Karen Thompson Walker’s novel, Age of Miracles, a world in the not-so-distant future contends with the effects of a persistent, rapid slowing of the earth’s rotation. As the hours of daylight and darkness stretch longer and longer, society divides into “clock-timers” and “real-timers” — those who adhere to the 24-hour clock, and those who continue to measure day and night by the earth’s rotation. Most people are clock-timers. The government supports clock time, and employers require it. Real-timers eventually leave their jobs and neighborhoods and congregate together in separate communities. But both real-timers and clock-timers suffer the effects as the earth spins more and more slowly (see sidebar above).

As any worker on the graveyard shift can tell you, we are creatures whose daily rhythms are tied to a 24-hour cycle. But are we inevitably bound to the clock? Not everyone thinks we should be. Anthropology professor Matthew Wolf-Meyer recommends improving the quality of sleep by taking a one-week vacation from the alarm clock, sleeping and waking without a schedule.26 Bryan Smith, writing for Men’s Health, took the clocklessness challenge a step further: He spent a whole week without knowing the time.27 Smith reports he found it calming to forsake the “chronomania” of his usual day, with its self-imposed stress and impatience.28

Let’s all take the clocklessness challenge! But, wait: How will we charge our clients if we can’t track billable hours? Possibly it is time (pun intended) to listen to clients who increasingly demand value-based and flat-fee billing for legal services. While they might not be content to return to the “for services rendered” invoice, maybe a more informative version would pass muster. Could any of us live, even for a week, without a maddening awareness of clock time? Unshackling ourselves from the billable hour would be a good start.

Endnotes

1. Paul M. Barrett, “How Billable Hours Changed the Legal Profession,” Bloomberg Businessweek (Dec. 4, 2014)(www.bloomberg.com/bw/articles/2014-12-04/how-billable-hours-changed-the-legal-profession).

2. Robert E. Hirshon, “The Billable Hour Is Dead. Long Live ...?” ABA Journal (Jan./Feb. 2013)(www.americanbar.org/publications/gp_solo/2013/january_february/billable_hour_dead_long_live.html).

3. Barrett, supra.

4. James Gleick, Faster: The Acceleration of Just About Everything (1999, 2000) at 152.

5. Steven J. Harper, “The Tyranny of the Billable Hour,”The New York Times (March 28, 2013) (www.nytimes.com/2013/03/29/opinion/the-case-against-the-law-firm-billable-hour.html?hp&_r=0).

6. Hirshon, supra.

7. Gleick, supra, at 152-153.

8. Anne-Marie Slaughter, “Why Women Still Can’t Have It All,” The Atlantic (July 2012) (www.theatlantic.com/magazine/archive/2012/07/why-women-still-cant-have-it-all/309020/).

9. Gleick, supra, at 155-156.

10. Gleick, supra, at 212.

11. Eviatar Zerubavel,The Seven Day Circle: The History and Meaning of the Week (1985), at 86-87.

12. Id.

13. David S. Landes, Revolution in Time: Clocks and the Making of the Modern World (1983, 2000), at 72-73.

14. Id. at 53.

15. Id. at 95.

16. Gleick, supra, at 37.

17. Id. at 49.

18. Landes, supra, at 395.

19. Gleick, supra, at 10-11.

20. Gleick, supra, at 15-17.

21. Rosemary K.M. Sword and Philip Zimbardo, “Hurry Sickness: Is Our Quest to Do All and Be All Costing Us Our Health?” Psychology Today (Feb. 9, 2013) (www.psychologytoday.com/blog/the-time-cure/201302/hurry-sickness).

22. Id.

23. Anne Fisher, “Too Busy to Think? You May Suffer from ‘Hurry Sickness,’ ”Fortune (Feb. 4, 2015)(fortune.com/2015/02/04/busy-hurry-work-stress/).

24. Gleick, supra, at 155.

25. Monika Bauerlein and Clara Jeffery, “All Work and No Pay: The Great Speedup,”Mother Jones (July/Aug. 2011)(www.motherjones.com/politics/2011/06/speed-up-american-workers-long-hours).

26. Matthew J. Wolf-Meyer, “Day In, Day Out: Give Your Alarm Clock a Vacation,”Psychology Today (Dec. 21, 2012) (www.psychologytoday.com/blog/day-in-day-out/201212/give-your-alarm-clock-vacation).

27. Bryon Smith, “Punch the Clock,” Men’s Health (Mar. 2, 2012) (www.menshealth.com/health/punch-clock).

28.Id.

 

ABOUT THE AUTHOR
Jennie Bricker is a Portland-area attorney in private practice (Jennie Bricker Land & Water Law, jbrickerlaw.com) and also a freelance writer doing business as Brick Work Writing & Editing LLC. She can be reached at (503) 928-0976 or brickworkwriting@gmail.com.

© 2016 Jennie Bricker


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