There Has Got To Be A Better Way (Law School, Part 5)

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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29 Responses

  1. Avatar LeeEsq says:

    In immigration law, the usual practice is to charge per service rather than in billable hours. Each application filled out would have a fee, every hearing appeareance would have a fee, etc. There is also a retainer. Other lawyers prefer to charge a flat fee to their clients. Billable hours really don’t translate that well into immigration because clients would debate you endlessly on them. You could be waiting for a few hours for a USCIS officer to go over your adjustment application but if everything lines up, the interview could be five or ten minutes long because the case is no-brainer.Report

    • Avatar Burt Likko in reply to LeeEsq says:

      I’ve got to think that not only is fairer to both attorney and client, and it leaves them both happier about the engagement at the end of the day. The incentive for the lawyer to present the case in an efficient fashion is great.

      Criminal defense is also often flat-fee billed, paid up front. A bit of a gamble for the lawyer, because some cases become very complex.

      I really think civil litigators need to look hard at this business model. And courts should encourage them to do so.Report

      • Avatar LeeEsq in reply to Burt Likko says:

        I’m not a big fan of flat-fees. They punish the clients that actively work with you to help them go through their case by making them pay just as much as the less active clients. In immigration, this could slow down things quite a bit. Its probably similar in other fields. As you pointed out, you don’t know how complicated a case could get. Something that seems relatively simple could turn really complicated, really fast and your left doing a lot of work for nothing at a certain point.

        The real virture of the fee for service system is that it helps keep hours saner for everyboy from partners to associates. When you charge per hour than the incentive is too charge as many hours as possible as you pointed out previously. Associates are miserable because of the long hours they have to put in doing tasks that are often mind-numblingly boring and are just being done to generate more revenue. This angers clietns because their bills keep mounting. The client complain to the partners, who are miserable because they have to calm the clients while still trying to bill them as much as possible.

        If you charge per service than there is a certain incentive to perform as many services as possible for a client but these are going to be somewhat harder to justify than x amount of hours because a client is more prone to question why that thing needed to be done. Also, the amount of time devoted to fulfilling the service is irrelevant as long as its done. This might create incentives for saner hours, which would make many associates very happy.Report

        • Avatar LeeEsq in reply to LeeEsq says:

          The hardest part about fee for services is creating a menu of services offered and the amount charged for each service. Every client needs to be charged the same fee for the same service. In form heavy work like patent law, trademark or immigration its not so hard. When dealing with other matters its kind of trickier. How much is a trial worth?Report

          • Avatar Burt Likko in reply to LeeEsq says:

            I’m not sure that’s how it would play out. Opposing a demurrer in case “A” might take 3 hours, opposing a demurrer in case “B” might take 10. Some experience lets the attorney handling the case approximate the amount of time it will take, and a flat rate might be negotiated in the middle of things.

            It could be like a contractor, again — if a significant problem comes up during construction, work stops, and contractor and customer look at the issue and agree on a price to address the problem. If it’s a minor problem, the contractor and customer agree ad hoc on a change order.

            It does require attorney and client to deal in good faith with one another, and it does require the attorney to have a good idea of what she’s doing before she undertakes doing it. Mostly, these things aren’t problems.Report

        • Avatar Kimmi in reply to LeeEsq says:

          Either way, it all comes down to ethics. Nobody ever does “fee free” services. What you’d wind up with is saying “here’s my flat fee, unless XYZ happen” (which isn’t everything)… and you can refund part of the fee if it turns out to be really quick and easy.Report

  2. Flat-fee, per service billing is the way to go, imho, and likely the way of the future, although it will take a while to get there. In my field (IP law), we do flat-fee arrangements for filing trademark applications, for example. I think that we should do this for patent applications as well (and some firms do), although convincing other members of my firm of this is an uphill battle.

    OP is absolutely right that the profession as a whole will not shift to this model without cooperation (and maybe prodding) from the courts.

    As for legal technicians and the like: in patent law, we have patent agents, who must have a technical background but not a law degree. They have to sit for the US Patent and Trademark Office licensing exam (i.e., the Patent Bar). Agents can file patent applications, and they can file petitions and responses to office actions with the USPTO in the course of a patent application’s examination by the Office, but they cannot practice in court.

    I think that more professionals along the lines of patent agents would be a positive move.Report

    • Avatar NewDealer in reply to Paul A. Forsyth says:

      Hasn’t one of the reasons law has taken a hit is because corporation’s now use “contract managers” for compliance issues instead of lawyers? Sometimes these are “JD advantage” positions but not always.Report

  3. Avatar NewDealer says:

    I like everything you say here.

    The Washington schemes sounds like the general scheme in England. Legal Technicians just sound like “solicitors”. The American system seems to be one of the few countries that does not distinguish between solicitors and barristers in some way.

    Flat-Fees are already done in many fields like immigration, crim defense, and bankruptcy. I’ve heard of it being done at large corporate firms as well but to a limited extent.Report

    • Avatar LeeEsq in reply to NewDealer says:

      Bankruptcy practically requires flat-fees in order to ensure that the bankruptcy lawyer gets paid. Its one of the few areas in law where flat-fees make sense.

      In colonial times, America distinguished between solictors and barristers just like England did. We got rid of the distinction after the American Revolution because it seemed a bit feudal and archaic.Report

  4. Avatar NewDealer says:

    I fully agree about law school tuition but I don’t know how you change this.

    My law school took some bad hits in the past few years. I loved my professors and the education and my classmates were hard working and smart but we are largely not getting full-time legal work, at least not yet. We used to give money to the rest of the university and now we need financial aid that is allegedly not forthcoming.Report

  5. Avatar Lawrence says:

    The Legal Technician reminds me of the PNP in medicine, lower level providers who can work and bill independently of a Doctor in most circumstances. Your example of a non specialist performing a boob job or heart surgery is misleading. This is unlikely to happen in practice. Doctors train and become certified for complex procedures and specialty care. A patient would be a fool to request or consent to such a thing, and the doctor a fool to do it. And no competent risk management officer would permit such an event in her hospital’s surgery suite.Report

    • Avatar Christopher Carr in reply to Lawrence says:

      Most of these specialities and subspecialities have specific licensures and other institutional standards. For instance, I am allowed to perform certain neurological and cognitive evaluations in my capacity as a research assistant that someone with an M.D. degree who is not a neurologist cannot.

      Even within the speciality, my immediate supervisor has R.N. and M.S.P.H. degrees, and only she is allowed to evaluate motor skills in a particular patient population we are working with: out of two M.D.s, her, and myself, only she has been able to complete the necessary course and pass the certification test.Report

    • Avatar Burt Likko in reply to Lawrence says:

      A patient would be a fool to request or consent to such a thing, and the doctor a fool to do it.

      Indeed. The difference between you and me is that it appears you are more reluctant than I to believe that such fools actually exist.Report

  6. Avatar Morat20 says:

    A few random notes:

    (1) 20k a year for law school? To give you an idea of how low that is — that’s what undergraduate degrees are getting up to, and not just the Ivys. 10k a semester, including room and board, is not exactly an super-high undergrad cost. Even for state schools.

    (2) Anything involving Kaplan makes me suspicious. Seriously, while online-learning seems like a super great thing, I instantly go to “overpriced scam”. I suppose it’s my exposure to places like ITT Tech and other certification mills, but I’ve got a deep, deep suspicion of the motivations and qualities of online degrees.

    (3) My wife got her Master’s (both of them) via distance learning, but as part of a program through an already accredited university. She paid the same amount, basically, as if she’d sat there — except she got in-state rates and obviously didn’t need room and board. I’m less suspicious of universities extending their courses online than I am of online-only school.s

    (4) I was kinda hoping someone would tackle online education — as noted, my wife had a good experience — but I’ve also read a lot of really, really nasty stories about some of the better known online schools.Report

    • Avatar Burt Likko in reply to Morat20 says:

      1. Absolutely. As NewDealer points out, it’s difficult to come up with a principled way to impose this. But as the Concord example in the OP demonstrates, the actual education can be delivered for substantially less than $20K a year.

      2-4. I understand the suspicion of online education. I grew disaffected from and eventually quit teaching for the University that’s Online for Profit because of the sorts of concerns you indicate. But my wife is completing her degree at Western Governors University and from what I’ve seen there is real academic integrity there. So I don’t see that there’s any reason law school couldn’t be presented in this format and especially if it helps gets lawyers out into the world without being saddled with and less than six figures of student debt and with a realistic chance of obtaining full-time employment practicing law, I’m inclined to keep an open mind about it. I’ve just had my attention called to St. Francis School of Law and what was described to me sounds quite promising also.

      (I edited that second paragraph a bit for clarity, as indicated in strikethrough and italics.)Report

      • Glad to hear WGU is working out. I will be touching on online ed tomorrow and almost emailed you to inquire so that I wouldn’t say nice things about it and then find out it’s awful.

        The basic issue with online ed, with the exception of WGU, is that the two sellers are either (a) traditional universities and (b) for-profits. Neither of which have the slightest motivation to save money. The first has a motivation not to give you a degree for free, but it just seems ridiculous to pay the same tuition rates.

        I thought I had found a great deal with the University of Wyoming. Alas, they jacked up their out-of-state rates to match those of people who move there.Report

  7. Avatar Karen says:

    I’m a Concord student, in my second year. We try to avoid calling California’s First Year Law Student’s Exam the “Baby Bar” because there’s nothing baby about it. I passed it on my second try. I work in a virtual environment for my job, got my MS from Kaplan in Legal Studies without setting foot in a classroom, and I have so far, greatly enjoyed my experience at Concord. I’m fortunate to live in a state that will let me sit for the state bar after getting my California license, which is why it worked. I couldn’t do this any other way.Report

  8. As other commenters have noted, while technically I could hang out a shingle and proclaim myself licensed to perform neurosurgery in my office, I can’t claim to be certified to do so. In order to do boob jobs you need to have completed a residency in plastic surgery. No hospital will grant you access to their operating rooms if you’re not board certified to perform those procedures. Licensure is only one step in the credentialing process to practice the various kinds of medicine, and the various state licensing boards would certainly look askance at a practitioner who claimed expertise greater than what he or she was trained to do.

    Are there quacks and charlatans who take advantage of an all-purpose license? You bet. (I will spare you the risk of baiting the trolls who often find their way to Blinded Trials. ) But the medical profession as a whole doesn’t really allow for “all-purpose” credentials to get you very far.Report

    • Avatar NewDealer in reply to Russell Saunders says:

      Legal specialization is a fairly recent phenomenon in the United States and might still largely be limited to larger legal markets.

      There is still a need for country lawyers who do a little of this and a little of that in the United States. There is even a need for it in working class urban communities. Specialization lets lawyers make a lot of money but it makes it harder for ordinary people to find lawyers on an affordable basis.Report

  9. Avatar Barry says:

    BTW, much of what Burt has been discussing has been discussed on Inside the Law School Scam (for those interested in reading hundreds of posts and comment threads; Burt has done a nice summary of the issues).

    The big problem is that most law schools are either (a) profit centers for their university or (b) for-profit corporations in their own right. In neither case is there an incentive to cut costs for students.Report

    • I guess those students are free to not voluntary enroll in such law schools then.Report

      • Avatar Barry in reply to Christopher Carr says:

        And that’s what’s been happening; enrollments have been dropping by 10% or more year over year for three or four years now (and this is in a mini-depression).

        One of the things that Burt has not covered is that (a) this information was not widely available and (b) the law schools were either highly dishonest or criminally fraudulent in these matters until ~2011.Report

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